Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit. (a) Participant agrees that Participant shall not, while an employee of the Company and during the twelve (12) month period following termination of employment (such collective duration, the “Restriction Period”), directly or indirectly, without the prior written consent of the Company: (i) (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or (ii) perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below. (b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof). (c) Without limiting the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provision. (d) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.
Appears in 5 contracts
Samples: Restricted Stock Unit Award Agreement (Infrastructure & Energy Alternatives, Inc.), Restricted Stock Unit Award Agreement (Infrastructure & Energy Alternatives, Inc.), Restricted Stock Unit Award Agreement (Infrastructure & Energy Alternatives, Inc.)
Non-Competition and Non-Solicitation. For purposes In order to protect the Company’s Proprietary Information and good will, during my employment and for a period of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant agrees that Participant shall not, while an employee of the Company and during the twelve (12) month period months following the termination of my employment for any reason (such collective duration, the “Restriction Restricted Period”), I will not directly or indirectly, whether as owner, partner, shareholder, director, manager, consultant, agent, employee, co-venturer or otherwise, engage, participate or invest in any business activity anywhere in the world that develops, manufactures or markets any products, or performs any services, that are competitive with the products or services of the Company, or products or services that the Company or its affiliates, has under development or that are the subject of active planning at any time during my employment; provided that this shall not prohibit any possible investment in publicly traded stock of a company representing less than one percent of the stock of such company. In addition, during the Restricted Period, I will not, directly or indirectly, without in any manner, other than for the prior written consent benefit of the Company:
, (ia) (A) engage in activities call upon, solicit, divert, take away, accept or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in conduct any business from or activity that competes with any of the businesses customers or prospective customers of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company suppliers, and/or (“Competitive Activities”b) or (B) assisting any Person in any way to dosolicit, or entice, attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform persuade any action, activity other employee or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee consultant of the Company to leave the employment Company for any reason or otherwise participate in or facilitate the hire, directly or through another entity, of the Company; (C) intentionally interfering with the relationship of any person who is employed or engaged by the Company with or who was employed or engaged by the Company within six months of any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) abovehire such person. The Restriction Period shall be tolled during (I acknowledge and shall be deemed automatically extended by) agree that if I violate any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions paragraph 8, the running of Section 1(a) shall not the Restricted Period will be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound extended by the other restrictive covenants time during which I engage in such violation(s). For purposes of this Agreement, including but not limited to Section 2 hereof).
(c) Without limiting the generality a “prospective customer” means any potential customer of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provision.
(d) Participant acknowledges which I knew or reasonably should have known that the Company has was actively soliciting (other than through a legitimate business interest and right in protecting its Confidential Information general campaign) or actively considered soliciting (as defined below), business strategies, employee and customer relationships and goodwill, and that other than through a general campaign) at any time within the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration twelve (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar 12) calendar months prior to the business last day of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependentsmy employment.
Appears in 5 contracts
Samples: Employment Agreement, Employment Agreement (Bluebird Bio, Inc.), Employment Agreement (Bluebird Bio, Inc.)
Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant agrees that Participant shall not, while an employee of During Employee's employment by the Company and during the twelve for a period of six (126) month period following termination of employment (such collective durationmonths after Employee's Termination in Connection with a Change in Control, the “Restriction Period”)Employee will not, directly or indirectly, without except with the prior written consent of the Company:
Board (i) (A) engage which consent shall not be unreasonably withheld or delayed), own, manage, operate, join, control or finance, or participate in activities the ownership, management, operation, control or businesses (including without limitation by owning financing of, or be connected as an officer, director, employee, partner, principal, agent, representative, consultant or otherwise with, or use or permit Employee's name to be used in connection with, any interest business or enterprise directly engaged in, managing, controlling, participating or with affiliates directly engaged in, consulting with, advising, rendering services for, or in any manner engaging in the business of owningresearching, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does businessdeveloping, that are principally or primarily engaged in any business or activity that competes with any of the businesses of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person in any way to dolicensing, or attempt to doselling, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any actiondistributing, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is employed by marketing or otherwise engaged to perform services forcommercializing organic light emitting device ("OLED") technology, chemicals or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) abovemanufacturing equipment. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) foregoing restrictions shall not be deemed breached as a result of Participant’s passive construed to prohibit the ownership by Employee of less than an aggregate of three five percent (35%) of any class of securities of a Person engagedcorporation engaged in any of the foregoing business activities that has a class of securities registered pursuant to the Securities Exchange Act, provided that such ownership represents a passive investment and that neither Employee nor any group of Persons including Employee, either directly or indirectly, in Competitive Activitiesmanages or exercises control over any such corporation, so long as Participant does not actively participate guarantees any of its financial obligations, otherwise takes any part in the conduct of its business (other than in exercising their rights as shareholders), or seeks to do any of such Person; provided, however, that such stock is listed on a national securities exchange the foregoing.
(for the sake of clarity, Participant shall remain bound b) During his or her employment by the other restrictive covenants in Company, and thereafter during the Separation Period, Employee will not knowingly (i) solicit, divert, take away, redirect or unreasonably interfere with the Company's business relationships with any of its suppliers, customers, partners or joint venturers with whom Employee had any direct or indirect involvement during the term of this Agreement; or (ii) solicit, including but not limited induce, recruit or attempt to Section 2 hereof)influence any person who is now or is hereafter an employee of the Company to become an employee or be engaged as an independent contractor of any entity engaged in activities competitive with those of the Company.
(c) Without limiting An amount equal to one-half of the generality of Section 7, notwithstanding severance benefits payable under this Agreement is specifically designated as additional consideration for the fact that any provision of covenants described in this Section 1 is determined not 11. The covenants described in this Section 11 shall continue to be specifically enforceableapply during the period specified herein after Employee's Termination of Employment for any reason, the Company may nevertheless be entitled without regard to recover monetary damages whether Employee executes a Release or receives any severance benefits as a result of Participant’s material breach such termination. If Employee breaches any of the covenants described in this Section 11, the applicable period during which the covenant applies shall be tolled during the period of such provisionbreach.
(d) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.
Appears in 4 contracts
Samples: Change in Control Agreement (Universal Display Corp \Pa\), Change in Control Agreement (Universal Display Corp \Pa\), Change in Control Agreement (Universal Display Corp \Pa\)
Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant agrees that Participant shall not, while an employee of During Employee’s employment by the Company and during the twelve for a period of six (126) month period following termination of employment (such collective durationmonths after Employee’s Termination in Connection with a Change in Control, the “Restriction Period”)Employee will not, directly or indirectly, without except with the prior written consent of the Company:
Board (i) (A) engage in activities which consent shall not be unreasonably withheld or businesses (including without limitation by owning any interest indelayed), managingown, controllingmanage, participating inoperate, consulting withjoin, advising, rendering services forcontrol or finance, or in any manner engaging participate in the business of owningownership, operating management, operation, control or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person in any way to dofinancing of, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.connected as an officer,
(b) director, employee, partner, principal, agent, representative, consultant or otherwise with, or use or permit Employee’s name to be used in connection with, any business or enterprise directly engaged in, or with affiliates directly engaged in, the business of researching, developing, licensing, selling, distributing, marketing or otherwise commercializing organic light emitting device (“OLED”) technology, chemicals or manufacturing equipment. The provisions of Section 1(a) foregoing restrictions shall not be deemed breached as a result of Participant’s passive construed to prohibit the ownership by Employee of less than an aggregate of three five percent (35%) of any class of securities of a Person engagedcorporation engaged in any of the foregoing business activities that has a class of securities registered pursuant to the Securities Exchange Act, provided that such ownership represents a passive investment and that neither Employee nor any group of Persons including Employee, either directly or indirectly, in Competitive Activitiesmanages or exercises control over any such corporation, so long as Participant does not actively participate guarantees any of its financial obligations, otherwise takes any part in the conduct of its business (other than in exercising their rights as shareholders), or seeks to do any of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof)foregoing.
(c) Without limiting During his or her employment by the generality Company, and thereafter during the Separation Period, Employee will not knowingly (i) solicit, divert, take away, redirect or unreasonably interfere with the Company’s business relationships with any of Section 7its suppliers, notwithstanding customers, partners or joint venturers with whom Employee had any direct or indirect involvement during the fact that any provision term of this Section 1 Agreement; or (ii) solicit, induce, recruit or attempt to influence any person who is determined not to be specifically enforceable, now or is hereafter an employee of the Company may nevertheless to become an employee or be entitled to recover monetary damages engaged as a result an independent contractor of Participant’s material breach any entity engaged in activities competitive with those of such provisionthe Company.
(d) Participant acknowledges that An amount equal to one-half of the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by severance benefits payable under this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with specifically designated as additional consideration for the covenants contained described in Sections 1this Section 12. The covenants described in this Section 12 shall continue to apply during the period specified herein after Employee’s Termination of Employment for any reason, 2, 3, 4 and 5 may prevent Participant from earning without regard to whether Employee executes a livelihood in Release or receives any severance benefits as a business similar to the business result of such termination. If Employee breaches any of the Companycovenants described in this Section 12, Participant’s experience and capabilities are the applicable period during which the covenant applies shall be tolled during the period of such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependentsbreach.
Appears in 4 contracts
Samples: Change in Control Agreement (Universal Display Corp \Pa\), Change in Control Agreement (Universal Display Corp \Pa\), Change in Control Agreement (Universal Display Corp \Pa\)
Non-Competition and Non-Solicitation. For purposes To protect the Company's Proprietary Information and good will, during Employee's employment and for a period of this Exhibit, references to one (1) year following the Company shall include its subsidiaries and Affiliates and references to termination of Employee’s employment for any reason (the Agreement shall refer to the “Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.Period”):
(a) Participant agrees that Participant shall not, while an employee of the Company and during the twelve (12) month period following termination of employment (such collective duration, the “Restriction Period”), Employee will not directly or indirectly, without the prior written consent of the Company:
(i) (A) engage in activities whether as owner, partner, shareholder, director, manager, consultant, agent, employee, co-venturer or businesses (including without limitation by owning any interest inotherwise, managingengage, controlling, participating in, consulting with, advising, rendering services for, participate or invest in any manner engaging in the business of owning, operating or managing any business) activity anywhere in the United States or other countries outside the United States in which the Company does businesselsewhere that develops, manufactures or markets any products, or performs any services, that are principally otherwise competitive with or primarily similar to the products or services in the Company's Field Of Interest, provided that this shall not prohibit any possible investment in publicly traded stock of a company representing less than one percent of the stock of such company. The phrase, Company's “Field of Interest”, means research, development, and commercialization activities relating to vaccinia-based and modified vaccinia Ankara (MVA)-based vaccines that induce or enhance immuno-protection, or such other specific areas of research, development and commercialization as the Company may be engaged in during the term of this Agreement.
(b) Employee will not, directly, or indirectly, in any manner, other than for the benefit of the Company, call upon, solicit, divert, take away, accept or conduct any business from or activity that competes with any of the businesses customers or prospective customers of the Company or any of its subsidiaries suppliers.
(c) Employee will not, directly, or controlled affiliates or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person indirectly, in any way to domanner, or solicit, entice, attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform persuade any action, activity other employee or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee consultant of the Company to leave the employment Company for any reason or otherwise participate in or facilitate the hire, directly or through another entity, of the Company; (C) intentionally interfering with the relationship of any person who is employed or engaged by the Company with or who was employed or engaged by the Company within six months of any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) abovehire such person. The Restriction Period shall be tolled during (Employee acknowledges and shall be deemed automatically extended by) agrees that if Employee violates any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions paragraph 20, the running of Section 1(a) shall not the Restricted Period will be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound extended by the other restrictive covenants time during which Employee engages in this Agreement, including but not limited to Section 2 hereofsuch violation(s).
(c) Without limiting the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provision.
(d) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.
Appears in 3 contracts
Samples: Employment Agreement (GeoVax Labs, Inc.), Employment Agreement (GeoVax Labs, Inc.), Employment Agreement (GeoVax Labs, Inc.)
Non-Competition and Non-Solicitation. For purposes Employee acknowledges that Company is engaged in the business of this Exhibitthe promotion, references to manufacture, cultivation, marketing or distribution of cannabis (the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant “Business”). Employee agrees that Participant shall not, while an employee during the term of the Employee’s employment with Company and during the for twelve (12) month period following consecutive months from the date of the termination of such employment (such collective duration, the “Restriction Restricted Period”), regardless of the reason for such termination and whether such termination is at the initiative of Employee or Company, Employee will not, directly or indirectly, individually or in connection with other individuals or entities, without the prior written consent of the Company:
(ia) Other than on behalf of Company, anywhere within a Market Area (Aas defined herein) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses of the Company or any of its subsidiaries Affiliates is then operating or controlled affiliates doing business or in which the Company has then or within the prior six (6) months identified an intention of doing business (as confirmed by reasonable written support including, but not limited to, having begun the application or certification process to enable such Company or an Affiliate to do business in such Market Area) (the “Restricted Area”), control, manage, operate, be employed or engaged by, or otherwise participate, assist, or engage in business as, or own an interest in or provide financial or other assistance to, or permit Employee’s name to be used in connection with, any individual proprietorship, partnership, corporation, joint venture, trust or any other form of business entity, if such entity owned by is engaged, in whole or in part, in business or operations that compete with or that is the Company (“Competitive Activities”) same as or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any action, activity or course of conduct which is substantially detrimental similar to the businesses Business or that compete with or that is the same as or substantially similar to any other business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the then engaged in by Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment Company’s owners or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectlyAffiliates, in Competitive Activities, so long as Participant does not actively participate in the business of such PersonRestricted Area; provided, however, that such this Section 3.2(a) does not prohibit or restrict Employee from holding a passive investment of not more than one percent (1%) of the outstanding shares of the capital stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in any publicly held corporation. For purposes of this Agreement, including but not limited to Section 2 hereof).
(c) Without limiting “Market Area” shall mean an imaginary circle with a fifty-mile radius centered on a cultivation, manufacturing, or retail facility operated by the generality Company or its Affiliate, or such smaller area as may be finally determined by a court of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not competent jurisdiction to be specifically enforceable, the Company may nevertheless be entitled a reasonable area from which to recover monetary damages as a result of Participant’s material breach of such provision.
(d) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant exclude Employee from earning a livelihood engaging in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.competitive activity;
Appears in 3 contracts
Samples: Employment Agreement (Vireo Health International, Inc.), Employment Agreement (Vireo Health International, Inc.), Employment Agreement (Vireo Health International, Inc.)
Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant agrees that Participant shall notAs part of the consideration for the compensation and benefits to be paid to Executive hereunder, while an employee to protect Confidential Information of the Company and during the twelve (12) month period following termination of employment (such collective durationits customers and clients that have been and will be entrusted to Executive, the business goodwill of the Company and its subsidiaries that will be developed in and through Executive and the business opportunities that will be disclosed or entrusted to Executive by the Company and its subsidiaries, and as an additional incentive for the Company to enter into this Agreement, from the date hereof through the first anniversary of the Date of Termination (the “Restriction Restricted Period”), Executive will not (other than for the benefit of the Company pursuant to this Agreement), directly or indirectly, without the prior written consent of the Company:
(i) engage in, or carry on or assist, individually or as a principal, owner, officer, director, employee, shareholder, consultant, contractor, partner, member, joint venturer, agent, equity owner or in any other capacity whatsoever, any (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in business directly competitive with the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily is engaged in any business or activity that competes with any of the businesses of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company from time to time (“Competitive ActivitiesCompeting Business”) or (B) assisting any Person Business Enterprise (as defined below) that is otherwise directly competitive with the Company within the states in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; orwhich the Company conducts business;
(ii) perform for any actioncorporation, activity partnership, limited liability company, sole proprietorship, joint venture or course of conduct which is substantially detrimental to the businesses other business association or business reputations of the Company and involves entity (Aa “Business Enterprise”) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) engaged in any employees of the Company or Persons who have worked Competing Business any duty Executive has performed for the Company during the twelve that involved Executive’s access to, or knowledge or application of, Confidential Information;
(12iii) month period immediately preceding such solicitation, recruitment or hiring induce or attempt thereof; (B) soliciting to induce any customer, supplier, licensee or encouraging (or attempting to solicit or encourage) any employee other business relation of the Company to leave cease doing business with the employment of the Company; (C) intentionally interfering Company or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and the Company;
(iv) induce or attempt to induce any customer, supplier, licensee or other business relation of the Company with whom Executive had direct business contact in dealings during the Employment Period in the course of his employment with the Company to cease doing business with the Company or in any Person who or which is employed by or otherwise engaged to perform services for, or way interfere with the relationship between any such customer, client, supplier, licensee, licensor licensee or other business relation of, and the Company; or
(v) solicit with the purpose of hiring or (D) assisting hire any Person in any way person who is or, within 180 days after such person ceased to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation an employee of the provisions Company, was an employee of this Section 1(a) unless provided belowthe Company.
(b) The provisions Notwithstanding the duration of the restrictions set forth in Section 1(a10(a) above and subject to Section 10(e) below, the restrictions set forth under Sections 10(a)(i) and (ii) shall not be deemed breached as a result expire after 180 days following the Date of ParticipantTermination, if Executive terminates this Agreement under Sections 5(c) or 4(b) hereof or the Company terminates Executive’s passive ownership employment without Cause under Sections 5(a) or 4(b).
(c) Notwithstanding the foregoing restrictions of less than an aggregate of three percent this Section 10, nothing in this Section 10 shall prohibit (3%i) of any class of securities of a Person engagedinvestment by Executive, directly or indirectly, in Competitive Activitiessecurities which are issued by a Business Enterprise involved in or conducting a Competing Business, so long as Participant provided that Executive, directly or indirectly, does not actively participate own more than five percent (5%) of the outstanding equity or voting securities of such Business Enterprise or (ii) Executive, directly or indirectly, from owning any interest in any Business Enterprise which conducts a Competing Business if such interest in such Business Enterprise is owned as of the date of this Agreement and Executive does not have the right, in the case of (i) or (ii), through the ownership of a voting interest or otherwise, to direct the activities of or associated with the business of such Person; providedBusiness Enterprise. Further, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof).
(c) Without limiting the generality of Section 7, notwithstanding the fact that any provision foregoing restrictions of this Section 1 is determined not 10 will be limited to be specifically enforceablethe extent required to comply with applicable law, Rule 5.06(a) of the Company may nevertheless be entitled to recover monetary damages as a result Texas Disciplinary Rules of Participant’s material breach of such provisionProfessional Conduct, or other similar ethical or professional rules or restrictions.
(d) Participant Executive acknowledges that each of the covenants of Section 10(a) are in addition to, and shall not be construed as a limitation upon, any other covenant provided in Section 10(a). Executive agrees that the geographic boundaries, scope of prohibited activities, and time duration of each of the covenants set forth in Section 10(a) are reasonable in nature and are no broader than are necessary to maintain the confidentiality and the goodwill of the Company’s proprietary and Confidential Information, plans and services and to protect the other legitimate business interests of the Company, including without limitation the goodwill developed by Executive with Company’s customers, suppliers, licensees and business relations.
(e) If, during any portion of the Restricted Period, Executive is not in compliance with the terms of Section 10(a), the Company has a legitimate business interest and right shall be entitled to, among other remedies, compliance by Executive with the terms of Section 10(a) for an additional period of time (i.e., in protecting its Confidential Information addition to the Restricted Period) that shall equal the period(s) over which such noncompliance occurred.
(as defined below), business strategies, employee and customer relationships and goodwill, and f) The parties hereto intend that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1Section 10(a) be construed as a series of separate covenants, 2one for each defined province in each geographic area in which Executive on behalf of the Company conducts business. Except for geographic coverage, 3, 4 and 5 may prevent Participant from earning a livelihood each such separate covenant shall be deemed identical in a business similar terms to the business applicable covenant contained in Section 10(a). Furthermore, each of the Companycovenants in Section 9(a) shall be deemed a separate and independent covenant, Participant’s experience and capabilities are such that Participant has each being enforceable irrespective of the enforceability (with or without reformation) of the other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependentscovenants contained in Section 10(a).
Appears in 3 contracts
Samples: Employment Agreement (Grizzly Energy, LLC), Employment Agreement (Vanguard Natural Resources, Inc.), Employment Agreement (Vanguard Natural Resources, Inc.)
Non-Competition and Non-Solicitation. For purposes In order to protect the Company’s Proprietary Information and good will, during my employment and for a period of this Exhibit, references to twelve (12) months following the Company shall include its subsidiaries and Affiliates and references to termination of my employment for any reason (the Agreement shall refer to the “Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.Period”):
(a) Participant agrees that Participant shall not, while an employee in consideration of the Company offer of employment, my salary or wage, any bonus I may receive, and during the twelve (12) month period following termination equity granted to me in connection with commencement of employment (such collective durationwith the Company, the “Restriction Period”)all of which I deem as fair and reasonable consideration for entering into this Agreement, I will not directly or indirectly, without the prior written consent whether as owner, partner, shareholder, director, consultant, agent, employee, co-venturer or otherwise, engage, participate or invest in any business that develops, manufactures or markets microbiome therapeutics that are competitive with products or services of the Company:, or that the Company has under development, or that are the subject of active planning at any time during my employment (collectively, the “Competitive Products”); provided that this will not prohibit any possible investment in publicly traded stock of a company representing less than one percent of the stock of such company and provided further that this provision shall apply only if I am an exempt employee (as that term is defined by the Fair Labor Standards Act) or if and when I subsequently become an exempt employee; and
(b) I will not directly or indirectly, in any manner, other than for the benefit of the Company, (i) (A) engage in activities call upon, solicit, divert or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with take away any of the businesses customers, business or prospective customers of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company suppliers, and/or (“Competitive Activities”ii) or (B) assisting any Person in any way to dosolicit, entice or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform persuade any action, activity other employee or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee consultant of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship services of the Company with for any Person who or which is employed by or otherwise engaged to perform services for, or reason. I acknowledge and agree that if I violate any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(aSection, in addition to any other remedies to which the Company may be entitled in law or equity, the running of the Restricted Period will be extended by the time during which I engage in such violation(s) unless provided below.
or up to twenty four (b24) The months, whichever is longer. I acknowledge and agree that the provisions of Section 1(a) this agreement shall apply during and following my employment by the Company and shall not be deemed breached as a result of Participant’s passive ownership of less than affected by any change in my job duties, whether material or immaterial. I further acknowledge and agree that I have the right and have had the opportunity to consult with an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in attorney prior to signing this Agreement, including but not limited to Section 2 hereof).
(c) Without limiting the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provision.
(d) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.
Appears in 3 contracts
Samples: Employment Agreement (Seres Therapeutics, Inc.), Employment Agreement (Seres Therapeutics, Inc.), Employment Agreement (Seres Therapeutics, Inc.)
Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant agrees that Participant shall not, while an employee of During Employee’s employment by the Company and during the twelve for a period of six (126) month period following termination of employment (such collective durationmonths after Employee’s Termination in Connection with a Change in Control, the “Restriction Period”)Employee will not, directly or indirectly, without except with the prior written consent of the Company:
Board (i) (A) engage which consent shall not be unreasonably withheld or delayed), own, manage, operate, join, control or finance, or participate in activities the ownership, management, operation, control or businesses (including without limitation by owning financing of, or be connected as an officer, director, employee, partner, principal, agent, representative, consultant or otherwise with, or use or permit Employee’s name to be used in connection with, any interest business or enterprise directly engaged in, managing, controlling, participating or with affiliates directly engaged in, consulting with, advising, rendering services for, or in any manner engaging in the business of owningresearching, operating developing, licensing, selling, distributing, marketing or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company otherwise commercializing organic light emitting device (“Competitive ActivitiesOLED”) technology, chemicals or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) abovemanufacturing equipment. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) foregoing restrictions shall not be deemed breached as a result of Participant’s passive construed to prohibit the ownership by Employee of less than an aggregate of three five percent (35%) of any class of securities of a Person engagedcorporation engaged in any of the foregoing business activities that has a class of securities registered pursuant to the Securities Exchange Act, provided that such ownership represents a passive investment and that neither Employee nor any group of Persons including Employee, either directly or indirectly, in Competitive Activitiesmanages or exercises control over any such corporation, so long as Participant does not actively participate guarantees any of its financial obligations, otherwise takes any part in the conduct of its business (other than in exercising their rights as shareholders), or seeks to do any of such Person; provided, however, that such stock is listed on a national securities exchange the foregoing.
(for the sake of clarity, Participant shall remain bound b) During his or her employment by the other restrictive covenants in Company, and thereafter during the Separation Period, Employee will not knowingly (i) solicit, divert, take away, redirect or unreasonably interfere with the Company’s business relationships with any of its suppliers, customers, partners or joint venturers with whom Employee had any direct or indirect involvement during the term of this Agreement; or (ii) solicit, including but not limited induce, recruit or attempt to Section 2 hereof)influence any person who is now or is hereafter an employee of the Company to become an employee or be engaged as an independent contractor of any entity engaged in activities competitive with those of the Company.
(c) Without limiting An amount equal to one-half of the generality of Section 7, notwithstanding severance benefits payable under this Agreement is specifically designated as additional consideration for the fact that any provision of covenants described in this Section 1 is determined not 12. The covenants described in this Section 12 shall continue to be specifically enforceableapply during the period specified herein after Employee’s Termination of Employment for any reason, the Company may nevertheless be entitled without regard to recover monetary damages whether Employee executes a Release or receives any severance benefits as a result of Participant’s material breach such termination. If Employee breaches any of the covenants described in this Section 12, the applicable period during which the covenant applies shall be tolled during the period of such provisionbreach.
(d) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.
Appears in 3 contracts
Samples: Change in Control Agreement (Universal Display Corp \Pa\), Change in Control Agreement (Universal Display Corp \Pa\), Change in Control Agreement (Universal Display Corp \Pa\)
Non-Competition and Non-Solicitation. For purposes In consideration of this Exhibitthe Employee’s employment hereunder and the benefits derived by the Employee as a result of the Transaction, references Employee agrees to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.following:
(a) Participant Employee hereby agrees that Participant shall not, while an employee during the period commencing on the date hereof and ending on the date that is one year following the date of the Company and during the twelve (12) month period following termination of Employee’s employment with the Company for any reason regardless of the circumstances thereof (such collective duration, the “Restriction Noncompetition Period”), Employee will not, without the express written consent of the Company, directly or indirectly, without the prior written consent of the Company:
(i) (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in any foreign country in which the Company does has conducted business, that are principally is conducting business or primarily engaged is presently contemplating conducting business, engage in any business activity which is, or activity that competes participate or invest in, or provide or facilitate the provision of financing to, or assist (whether as owner, part-owner, shareholder, member, partner, director, officer, trustee, executive, agent or consultant, or in any other capacity), any business, organization or person other than the Company (or any subsidiary or affiliate of the Company), including any such business, organization or person involving, or which is, a family member of Employee, whose business, activities, products or services are competitive with any of the businesses business, activities, products or services conducted or offered or proposed to be conducted or offered by the Company or its subsidiaries during any period in which Employee is employed by the Company or any of its subsidiaries. Without implied limitation, the foregoing covenant shall be deemed to prohibit (other than through a general solicitation not targeted at the Company or its Subsidiaries) (a) hiring or engaging or attempting to hire or engage for or on behalf of Employee or any such competitor any employee of the Company or any of its direct and/or indirect subsidiaries or controlled affiliates and affiliates, or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations former employee of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons its direct and/or indirect subsidiaries and affiliates who have worked for the Company was employed during the twelve six (126) month period immediately preceding the date of such solicitationattempt to hire or engage, recruitment (b) encouraging for or hiring on behalf of Employee or attempt thereof; any such competitor any such employee to terminate his or her relationship or employment with the Company or any of its direct or indirect subsidiaries and affiliates, (Bc) recruiting or soliciting for or encouraging (on behalf of Employee or attempting to solicit or encourage) any employee such competitor any customer of the Company to leave the employment or any of the Company; (C) intentionally interfering with the relationship its direct or indirect subsidiaries and affiliates, or any former customer of the Company with or any Person of its direct or indirect subsidiaries and affiliates who was a customer during the six (6) month period immediately preceding the date of such solicitation and (d) diverting to any person (as hereinafter defined) any customer or business opportunity of the Company or any of any of its direct or indirect subsidiaries and affiliates. Notwithstanding anything herein to the contrary, Employee may make passive investments in any enterprise the shares of which is employed by or otherwise engaged to perform services forare publicly traded if such investment constitutes less than five percent (5%) of the equity of such enterprise. Employee agrees that if a court of competent jurisdiction determines that any restriction, or any customerportion thereof, client, supplier, licensee, licensor or other business relation ofset forth in this Section 7 is overly restrictive and unenforceable, the Company; court may reduce or (D) assisting modify such restrictions to those which it deems reasonable and enforceable under the circumstances, and as so reduced or modified, the parties hereto agree that the restrictions of this Section 7 shall remain in full force and effect. Employee further agrees that if a court of competent jurisdiction determines that any Person in any way to doprovision of this Section 7 is unenforceable, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the remaining provisions of this Section 1(a) unless provided below7 and the remainder of this Agreement shall not be affected thereby, and shall remain in full force and effect. Employee acknowledges that the restrictions contained in this paragraph in view of the nature of the Company’s business, are reasonable and necessary to protect the Company’s legitimate business interests and that any violation of this paragraph would result in irreparable injury to the Company, and that monetary damages may not be sufficient to compensate the Company for any economic loss which may be incurred by reason of breach of the foregoing restrictive covenants. In the event of a breach or a threatened breach by Employee of any provision in this paragraph, the Company shall be entitled to a temporary restraining order and injunctive relief restraining Employee from the commission of any breach, and to recover the Company’s attorneys’ fees, costs and expenses related to the breach or threatened breach. Nothing contained in this paragraph shall be construed as prohibiting the Company from pursuing any other remedies available to it for any breach or threatened breach, including, without limitation, the recovery of money damages, attorneys’ fees and costs. The restrictions in this paragraph shall each be construed as independent of any other provisions in this Agreement, and the existence of any claim or cause of action by Employee against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement of this Agreement. If Employee violates any of the restrictions contained in this Section, the restrictive period will be suspended and will not run in favor of Employee from the time of the commencement of any violation until the time when Employee cures the violation to the Company’s reasonable satisfaction.
(b) The provisions During and after Employee’s employment, Employee shall cooperate fully with the Company in the defense or prosecution of Section 1(a) any claims or actions now in existence or which may be brought in the future against or on behalf of the Company that relate to events or occurrences that transpired while Employee was employed by the Company. Employee’s full cooperation in connection with such claims or actions shall include, but not be deemed breached limited to, being available to meet with counsel to prepare for discovery or trial and to act as a result witness on behalf of Participant’s passive ownership of less than an aggregate of three percent (3%) the Company at mutually convenient times. During and after the Employment, Employee also shall cooperate fully with the Company in connection with any investigation or review of any class of securities of a Person engagedfederal, directly state or indirectly, in Competitive Activities, so long local regulatory authority as Participant does not actively participate in the business of any such Person; provided, however, investigation or review relates to events or occurrences that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound transpired while Employee was employed by the other restrictive covenants Company. The Company shall reimburse Employee for any reasonable fees and reasonable out-of-pocket expenses incurred in connection with Employee’s performance of obligations pursuant to this Agreement, including but not limited to Section 2 hereof7(b).
(c) Without limiting Employee agrees, while he is employed by the generality Company, to offer or otherwise make known or available to it, as directed by the Board of Section 7the Company and without additional compensation or consideration, notwithstanding any business prospects, contracts or other business opportunities that Employee may discover, find, develop or otherwise have available to Employee in the fact Company’s general industry and further agrees that any provision of this Section 1 is determined not to such prospects, contacts or other business opportunities shall be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provision.
(d) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business property of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.
Appears in 2 contracts
Samples: Employment Agreement (Open Link Financial, Inc.), Employment Agreement (Open Link Financial, Inc.)
Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant agrees that Participant shall notAs part of the consideration for the compensation and benefits to be paid to Executive hereunder, while an employee to protect Confidential Information of the Company and during the twelve (12) month period following termination of employment (such collective durationits customers and clients that have been and will be entrusted to Executive, the business goodwill of the Company and its subsidiaries that will be developed in and through Executive and the business opportunities that will be disclosed or entrusted to Executive by the Company and its subsidiaries, and as an additional incentive for the Company to enter into this Agreement, from the date hereof through the first anniversary of the Date of Termination (the “Restriction Restricted Period”), Executive will not (other than for the benefit of the Company pursuant to this Agreement), directly or indirectly, without the prior written consent of the Company:
(i) engage in, or carry on or assist, individually or as a principal, owner, officer, director, employee, shareholder, consultant, contractor, partner, member, joint venturer, agent, equity owner or in any other capacity whatsoever, any (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in business directly competitive with the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily is engaged in any business or activity that competes with any of the businesses of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company from time to time (“Competitive ActivitiesCompeting Business”) or (B) assisting any Person Business Enterprise (as defined below) that is otherwise directly competitive with the Company within the states in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; orwhich the Company conducts business;
(ii) perform for any actioncorporation, activity partnership, limited liability company, sole proprietorship, joint venture or course of conduct which is substantially detrimental to the businesses other business association or business reputations of the Company and involves entity (Aa “Business Enterprise”) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) engaged in any employees of the Company or Persons who have worked Competing Business any duty Executive has performed for the Company during the twelve that involved Executive’s access to, or knowledge or application of, Confidential Information;
(12iii) month period immediately preceding such solicitation, recruitment or hiring induce or attempt thereof; (B) soliciting to induce any customer, supplier, licensee or encouraging (or attempting to solicit or encourage) any employee other business relation of the Company to leave cease doing business with the employment of the Company; (C) intentionally interfering Company or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and the Company;
(iv) induce or attempt to induce any customer, supplier, licensee or other business relation of the Company with whom Executive had direct business contact in dealings during the Employment Period in the course of his employment with the Company to cease doing business with the Company or in any Person who or which is employed by or otherwise engaged to perform services for, or way interfere with the relationship between any such customer, client, supplier, licensee, licensor licensee or other business relation of, and the Company; or
(v) solicit with the purpose of hiring or (D) assisting hire any Person in any way person who is or, within 180 days after such person ceased to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation an employee of the provisions Company, was an employee of this Section 1(a) unless provided belowthe Company.
(b) The provisions Notwithstanding the duration of the restrictions set forth in Section 1(a10(a) above and subject to Section 10(e) below, the restrictions set forth under Sections 10(a)(i) and (ii) shall not be deemed breached as a result expire after 180 days following the Date of ParticipantTermination, if Executive terminates this Agreement under Sections 5(c) or 4(b) hereof or the Company terminates Executive’s passive ownership employment without Cause under Sections 5(a) or 4(b).
(c) Notwithstanding the foregoing restrictions of less than an aggregate of three percent this Section 10, nothing in this Section 10 shall prohibit (3%i) of any class of securities of a Person engagedinvestment by Executive, directly or indirectly, in Competitive Activitiessecurities which are issued by a Business Enterprise involved in or conducting a Competing Business, so long as Participant provided that Executive, directly or indirectly, does not actively participate own more than five percent (5%) of the outstanding equity or voting securities of such Business Enterprise or (ii) Executive, directly or indirectly, from owning any interest in any Business Enterprise which conducts a Competing Business if such interest in such Business Enterprise is owned as of the date of this Agreement and Executive does not have the right, in the case of (i) or (ii), through the ownership of a voting interest or otherwise, to direct the activities of or associated with the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof).
(c) Without limiting the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provisionBusiness Enterprise.
(d) Participant Executive acknowledges that each of the covenants of Section 10(a) are in addition to, and shall not be construed as a limitation upon, any other covenant provided in Section 10(a). Executive agrees that the geographic boundaries, scope of prohibited activities, and time duration of each of the covenants set forth in Section 10(a) are reasonable in nature and are no broader than are necessary to maintain the confidentiality and the goodwill of the Company’s proprietary and Confidential Information, plans and services and to protect the other legitimate business interests of the Company, including without limitation the goodwill developed by Executive with Company’s customers, suppliers, licensees and business relations.
(e) If, during any portion of the Restricted Period, Executive is not in compliance with the terms of Section 10(a), the Company has a legitimate business interest and right shall be entitled to, among other remedies, compliance by Executive with the terms of Section 10(a) for an additional period of time (i.e., in protecting its Confidential Information addition to the Restricted Period) that shall equal the period(s) over which such noncompliance occurred.
(as defined below), business strategies, employee and customer relationships and goodwill, and f) The parties hereto intend that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1Section 10(a) be construed as a series of separate covenants, 2one for each defined province in each geographic area in which Executive on behalf of the Company conducts business. Except for geographic coverage, 3, 4 and 5 may prevent Participant from earning a livelihood each such separate covenant shall be deemed identical in a business similar terms to the business applicable covenant contained in Section 10(a). Furthermore, each of the Companycovenants in Section 9(a) shall be deemed a separate and independent covenant, Participant’s experience and capabilities are such that Participant has each being enforceable irrespective of the enforceability (with or without reformation) of the other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependentscovenants contained in Section 10(a).
Appears in 2 contracts
Samples: Employment Agreement (Grizzly Energy, LLC), Employment Agreement (Vanguard Natural Resources, Inc.)
Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant agrees that Participant shall notThe Founder hereby covenants and undertakes that, while an employee of the Company and during the twelve (12) month period following termination of employment (such collective duration, the “Restriction Period”), directly or indirectly, without unless upon the prior written consent of the Company:
Preferred Majority, that commencing from the date of this Agreement until one (1) year after the later of (i) the date of on which the Founder ceases to hold, directly or indirectly, any Equity Securities in any Group Company; and (Aii) engage in activities the date on which the Founder ceases to be engaged by or businesses holds any position as an officer or director or employee of any Group Company (including without limitation by owning any interest the “Non-Competition Period”), he shall not, directly or indirectly, own, manage, be engaged in, managingoperate, controllingControl, participating inwork for, consulting consult with, advising, rendering render services for, do business with, maintain any interest in (proprietary, financial or otherwise) or participate in the ownership, management, operation or Control of, any manner engaging business, whether in corporate, proprietorship or partnership form or otherwise, that includes the business of owningany Group Company or any part thereof or that otherwise competes directly or indirectly with any Group Company, operating or managing except that the Founder may have a passive investment of less than five percent (5%) of the stock of any business) anywhere publicly traded company that engages in the United States foregoing as a financial investor.
(b) During the Non-Competition Period, in the event any Person directly or other countries outside the United States in which the Company does business, that are principally indirectly established or primarily engaged managed by any Founder engages or proposes to engage in any business that includes the business of any Group Company or activity any part thereof or that otherwise competes directly or indirectly with any Group Company, such Founder shall disclose any and all information regarding such Person to the Investors upon request and shall cause the lawful portion of the businesses of such Person’s business to be transferred immediately to the Company or any of its subsidiaries or controlled affiliates or any entity owned Subsidiary designated by the Company (“Competitive Activities”) or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; orCompany.
(iic) perform any actionThe Founder further covenants and undertakes that, activity or course of conduct which is substantially detrimental to during the businesses or business reputations of the Company and involves Non-Competition Period, he shall not (Ai) solicitingcause, recruiting or hiring (or attempting to solicit, recruit induce or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) encourage any employee of the any Group Company to leave the employment or hire of the such Group Company; , (Cii) intentionally interfering with the relationship of the Company with any Person who or which is employed by employ or otherwise engaged to perform services forengage any such individual nor (iii) cause, induce or encourage any material actual or prospective client, customer, supplier, licensee or licensor of any Group Company, or any customerother Person who has a material business relationship with any Group Company, client, supplier, licensee, licensor to terminate or other business relation of, modify to the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation detriment of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of Group Companies any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof).
(c) Without limiting the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provisionrelationship.
(d) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each Each and every restraint imposed by obligation under this Agreement Section 11.2 shall be treated as a separate obligation and shall be severally enforceable as such. In the event of any obligation being or becoming unenforceable in whole or in part, such part which is reasonable with respect unenforceable shall be deleted from such clause and any such deletion shall not affect the enforceability of the remainder parts of such clause.
(e) The Parties agree that having regard to subject matterall the circumstances, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the restrictive covenants contained in Sections 1, 2, 3, 4 this Section 11.2 are reasonable and 5 may prevent Participant from earning a livelihood in a business similar to necessary for the business protection of the CompanyGroup Companies and the Investors, Participant’s experience and capabilities further agree that having regard to those circumstances those covenants are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependentsnot excessive or unduly onerous upon the Founder.
Appears in 2 contracts
Samples: Shareholder Agreement (Gracell Biotechnologies Inc.), Shareholder Agreement (Gracell Biotechnologies Inc.)
Non-Competition and Non-Solicitation. For purposes In order to protect the Company’s Proprietary Information and good will, during my employment and for a period of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant agrees that Participant shall not, while an employee of the Company and during the twelve (12) month period months following the termination of my employment for any reason (such collective duration, the “Restriction Restricted Period”), I will not directly or indirectly, whether as owner, partner, shareholder, director, consultant, agent, employee, co-venturer or otherwise, engage, participate or invest in any business activity anywhere in the United States that researches, develops, manufactures, licenses or markets any products, or performs any services, that are competitive with the products or services of the Company, or products or services that the Company has under development or that are the subject of active planning at any time during my employment; provided that this shall not prohibit any possible investment in publicly traded stock of a company representing less than one percent of the stock of such company or in private investment vehicles for which I do not control any aspect of the investments by such vehicles related to investments in competition. In addition, during the Restricted Period, I will not, directly or indirectly, without in any manner, other than for the prior written consent benefit of the Company:
, (ia) (A) engage in activities divert or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with take away any of the businesses customers, business or prospective customers of the Company or any of its subsidiaries suppliers, or controlled affiliates call upon or any entity owned by the Company solicit in order to do so, and/or (“Competitive Activities”b) or (B) assisting any Person in any way to dosolicit, entice or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform persuade any action, activity other employee or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee consultant of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship services of the Company with for any Person reason or otherwise participate in or facilitate the hire, directly or through another person or entity, of any person who or which is employed or exclusively engaged by the Company or otherwise who was employed or exclusively engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, by the Company; or (D) assisting any Person in any way to do, or Company within six months of the attempt to dohire such person, anything prohibited provided that the foregoing shall not be violated by Section 1(a)(ii)(A), advertising not targeted at the foregoing in (Ba) or (Cb) aboveor by serving as a reference upon request. The Restriction Period shall be tolled during (I acknowledge and shall be deemed automatically extended by) agree that if I violate any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
paragraph 8, the running of the Restricted Period will be extended by the time during which I engage in such violation(s). Notwithstanding the foregoing, after the end of my employment, the obligations above other than (b) The provisions of Section 1(a) in the preceding sentence shall not be deemed breached as a result apply to my employment by any publicly traded company where the competitive activities of Participant’s passive ownership of such company comprise less than an aggregate of three five percent (35%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long the revenues under my supervision measured as Participant does not actively participate in the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof).
(c) Without limiting the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provision.
(d) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are end of the fiscal year ending immediately prior to my commencement of employment with such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependentscompany.
Appears in 2 contracts
Samples: Executive Employment Agreement (Centrexion Therapeutics Corp), Executive Employment Agreement (Centrexion Therapeutics Corp)
Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant agrees that Participant shall notDuring the Employment Term, while an employee of the Company and during the twelve (12) month period following termination of employment (such collective duration, the “Restriction Period”), directly Executive will not do or indirectly, without the prior written consent of the Company:
say anything that: (i) (A) engage in activities could advance an interest of any existing or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses prospective competitor of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person Affiliates in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) aboveway; or
(ii) perform any action, activity that will or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees may injure an interest of the Company or Persons who have worked for the Company during the twelve any of its Affiliates in its relationship and dealings with existing or potential suppliers or customers; or (12iii) month period immediately preceding such solicitation, recruitment solicits or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) encourages any other employee of the Company or any of its Affiliates to leave do or say something that is disloyal to the employment Company or any of the Company; (C) intentionally interfering its Affiliates, is inconsistent with the relationship interest of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor of its Affiliate’s interests or other business relation of, the Company; or (D) assisting violates any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions provision of this Section 1(a) unless provided below.Agreement.
(b) The provisions During Executive’s employment under this Agreement and for two (2) years following the termination of Section 1(aExecutive’s employment (whether under this Agreement or during a successor or “at will” employment period):
(i) Executive shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engagednot, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in on Executive’s own behalf or on behalf of any person or entity other than the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this AgreementCompany, including but not limited to Section 2 hereof).
(c) Without limiting the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages without limitation as a result proprietor, principal, agent, partner, officer, director, stockholder, employee, member of Participant’s material breach of such provision.
(d) Participant acknowledges any association, consultant or otherwise, engage in any business that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided directly competitive with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participantincluding without limitation any business that operates one or more full-service, casual dining steakhouse restaurants within the United States or any foreign country in which the Company or its franchisees or its joint venture partners is operating or in which Executive knows the Company or its franchisees or its joint venture partners proposes to open within twenty-four (24) months. The provisions of this Section shall also apply to any business which is directly competitive with any other business which the Company or an Affiliate acquires or develops during Executive’s experience employment with the Company.
(ii) Except as required in the performance of Executive’s duties as an employee of the Company, Executive shall not, directly or indirectly, (A) hire, engage or solicit or induce or attempt to induce to cease working for the Company, any person who is then an employee of the Company or who was an employee of the Company during the six (6) month period immediately preceding Executive’s termination of employment with the Company, nor (B) solicit, request, advise, induce or attempt to induce any vendor, supplier or other business contact of the Company to cancel, curtail, cease doing business with, or otherwise adversely change its relationship with the Company.
(c) For the purposes of this Agreement, the phrase “proposes to open” a restaurant includes all locations for which active, bona fide negotiations to secure a fee or leasehold interest with the intention of establishing a restaurant are being conducted. Mere ownership, whether TXRH Executive Employment Agreement – XXXXXXXX through direct or indirect stock holdings or otherwise, of 1% or less of a business shall not constitute a violation of the restriction in Section 11(b)(i) above, unless a greater amount is approved in writing by the Board and the Chairman of Texas Roadhouse, Inc. Executive is deemed to engage in a business if Executive expects to acquire a proprietary interest in a business or to be made an employee, officer, director, manager, consultant, independent contractor, advisor or otherwise of such business at any time after such possibility has been discussed with any officer, director, employee, agent, or promoter of such business.
(d) Executive agrees that Executive’s experience, capabilities and circumstances are such that Participant has other opportunities to earn these provisions will not prevent Executive from earning a livelihood livelihood. Executive further agrees that the limitations set forth in this Section (including, without limitation, any time or territorial limitations) are reasonable and properly required for the adequate means protection of support for Participant the businesses of the Company and Participant’s dependents.its Affiliates. The covenants made by Executive in this Section (and in Sections 8, 9, 10 and 17) will survive the expiration or termination of this Agreement.
Appears in 2 contracts
Samples: Employment Agreement (Texas Roadhouse, Inc.), Employment Agreement (Texas Roadhouse, Inc.)
Non-Competition and Non-Solicitation. For purposes During the term of this Exhibit, references to Participant’s Service and for 12 months following the Company shall include its subsidiaries and Affiliates and references to termination of Participant’s Service (the Agreement shall refer to the “Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.Period”):
(a) Participant agrees that Participant shall will not, while an employee of the Company and during the twelve (12) month period following termination of employment (such collective duration, the “Restriction Period”), directly or indirectly, individually or as a consultant to, or an Participant, officer, director, manager, stockholder, partner, member or other owner or participant in any business entity (including, without the prior written consent limitation, any competitor of the Company:
(i) (A) ), other than the Company, engage in activities or businesses (including without limitation by owning assist any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, other person or entity to engage in any manner business which competes with any business in which the Company is engaging in or the business actual or demonstrably anticipated research or development of owningthe Company (a “Competing Business”), operating or managing any business) during the Participant’s employment, anywhere in the United States or other countries outside anywhere else in the United States in which world where the Company does businessbusiness or plans to do business or is considering doing business Notwithstanding the foregoing, that are principally the Participant’s (x) discretionary ownership of less than three percent (3%) and (y) non-discretionary (for example through a mutual fund or primarily engaged other investment vehicle not controlled by Participant) ownership of the outstanding stock of any publicly-traded corporation shall not be deemed a violation of this Section 5(a);
(b) the Participant will not, directly or indirectly, individually or as a consultant to, or an Participant, officer, director, manager, stockholder, partner, member or other owner or participant in any business entity solicit or activity that competes endeavor to entice away from the Company, endeavor to reduce the amount of business conducted with any of the businesses of the Company by or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering otherwise interfere with the business relationship of the Company with any Person person or entity who or which is employed by or otherwise engaged to perform services foris, or any customerwas within the one-year period immediately prior thereto, clienta customer or client of, supplier, licenseevendor or service provider to, licensor or other party having business relation of, relations with the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.and
(bc) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engagedthe Participant will not, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof).
(c) Without limiting the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages individually or as a result of consultant to, or an Participant’s material breach of such provision.
(d) Participant acknowledges that the Company has a legitimate , officer, director, manager, stockholder, partner, member or other owner or participant in any business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss entity solicit or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (endeavor to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant entice away from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities or offer employment or any consulting arrangement to, or otherwise interfere with the business relationship of the Company with any person or entity who is, or was within the one-year period immediately prior thereto, employed by, associated with or a consultant to earn a livelihood and adequate means of support for Participant and Participant’s dependentsthe Company.
Appears in 2 contracts
Samples: Restricted Stock Unit Award Agreement (Definitive Healthcare Corp.), Restricted Stock Unit Award Agreement (Definitive Healthcare Corp.)
Non-Competition and Non-Solicitation. For purposes of this ExhibitSubject to applicable law, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant Director agrees that Participant shall not, while an employee during the term of the Company Employment and during for a period of two (2) years following the twelve (12) month period following termination of employment (such collective duration, the “Restriction Period”), directly or indirectly, without the prior written consent of the CompanyEmployment for whatever reason:
(i) The Director will not solicit, canvass or approach clients, customers or contacts of the Company or other persons or entities introduced to the Director in the Director’s capacity as a representative of the Company for the purposes of doing business with such persons or entities which will harm the business relationship between the Company and such persons and/or entities;
(Aii) engage in activities The Director will not solicit, canvass or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services forapproach, or endeavor to solicit, canvass or approach any person who has business communication with the Company or its affiliates to terminate such communication, or who has negotiation with the Company or its affiliates on business cooperation to terminate such negotiation;
(iii) The Director will not solicit, canvass or persuade or endeavor to solicit, canvass or persuade in any manner engaging way, or intend to or actually disturb the Company’s business in any way or endeavor to do the business foresaid activities in order that (1) any current client or supplier of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business its affiliates becomes a client or activity that competes supplier of an entity or individual competing with any of the businesses of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“Competitive Activities”) affiliates; or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire2) any employees current client or supplier of the Company or Persons who have worked for its affiliates terminates the cooperation with the Company during or its affiliates; and
(iv) The Director will not seek, directly or indirectly, by the twelve (12) month period immediately preceding such solicitationoffer of alternative employment or other inducement whatsoever, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) the services of any employee of the Company to leave employed as at or after the employment date of such termination, or in the year preceding such termination; The provisions contained in Section 8(a) are considered reasonable by the Director and the Company; (C) intentionally interfering with . In the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof).
(c) Without limiting the generality of Section 7, notwithstanding the fact event that any provision of this Section 1 is determined not such provisions should be found to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provision.
(d) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company void under applicable laws but would be seriously damaged by valid if some part thereof was deleted or the disclosure period or area of Confidential Information application reduced, such provisions shall apply with such modification as may be necessary to make them valid and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependentseffective.
Appears in 2 contracts
Samples: Director Agreement (Lucas GC LTD), Director Agreement (Jayud Global Logistics LTD)
Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant Seller agrees that Participant that, for a period of five (5) years following the Closing Date, it shall not, while an employee of the Company and during the twelve (12) month period following termination of employment (such collective duration, the “Restriction Period”)shall cause its Affiliates not to, directly or indirectly, own, manage, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, engaged in the Business. Notwithstanding the foregoing or any other term or provision in this Agreement to the contrary, (i) Seller shall not be prohibited from participating in the operation of the remaining business and assets of Seller (other than the Business) including permitting any Person to advertise with Seller (or on or in any of Seller’s websites, magazines or job boards) or attend, exhibit, sponsor or speak at any Seller conference, exhibition, training, class or webinar and (ii) following the expiration of the Non-Competition Period (as defined in the Non-Competition Agreement), this Section 5.13(a) shall only apply to Xxxx Xxxxxxx in his capacity as an employee, officer and director of Seller and its Subsidiaries (and not in his individual capacity or as an Affiliate of Seller or its Subsidiaries). The parties hereto specifically acknowledge and agree that the remedy at law for any breach of the foregoing will be inadequate and that Purchaser, in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoever.
(b) Seller and Purchaser each agree that, for a period of three (3) years following the Closing Date, it shall not solicit or induce the employment or services of or hire any employee of Purchaser or any employee providing services to the Business, in the case of Seller, or any employee of Seller, in the case of Purchaser, without the prior written consent of the Company:
(i) (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or such other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in the business of such Personparty hereto; provided, however, that general solicitations to the public not directed at such stock is listed on employees shall not be deemed a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof).
(c) Without limiting the generality of Section 7, notwithstanding the fact that any provision violation of this Section 1 is determined not 5.13(b). Notwithstanding the foregoing, if Seller or Purchaser terminates the employment of any such employee, Purchaser or Seller, as the case may be, shall be permitted to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of solicit such provisionterminated employee.
(d) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Jupitermedia Corp), Stock Purchase Agreement (Meckler Alan M)
Non-Competition and Non-Solicitation. For purposes a) By entering into this Agreement, you acknowledge that the Confidential Information has been and will be developed and acquired by the Company by means of this Exhibitsubstantial expense and effort, references that the Confidential Information is a valuable asset of the Company’s business, that the disclosure of the Confidential Information to any of the Company’s competitors would cause substantial and irreparable injury to the Company shall include its subsidiaries Company’s business, and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant agrees that Participant shall not, while an employee any customers of the Company developed by you or others during your employment are developed on behalf of the Company. You further acknowledge that you have been provided with access to Confidential Information, including Confidential Information concerning the Company’s major customers, and its technical, marketing and business plans, disclosure or misuse of which would irreparably injure the Company.
b) In exchange for the consideration specified in Section 1 of this Agreement — the adequacy of which you expressly acknowledge — you agree that during your employment by the Company and for a period of twelve (12) month period months following termination of employment (such collective durationEmployment Separation, the “Restriction Period”)you shall not, directly or indirectly, without the prior written consent of the Companyas an owner, shareholder, officer, employee, manager, consultant, independent contractor, or otherwise:
(i) (A) engage in activities Attempt to recruit or businesses (including without limitation by owning any interest inhire, managing, controlling, participating in, consulting with, advising, rendering services for, interfere with or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person in any way to doharm, or attempt to dointerfere with or harm, anything prohibited by this Section 1(a)(i)(A) above; orthe relationship of the Company, its subsidiaries or affiliates, with any person who is an employee, customer or supplier of the Company, its subsidiaries or affiliates;
(ii) perform Contact any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations employee of the Company and involves (A) soliciting, recruiting for the purpose of discussion or hiring (suggesting that such employee resign form employment with the Company for the purpose of becoming employed elsewhere or attempting to solicit, recruit or hire) any provide information about individual employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment personnel policies or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee procedures of the Company to leave any person or entity, including any individual, agency or company engaged in the employment business of recruiting employees, executives or officer; or
(iii) Own, manage, operate, join control, be employed by, consult with or participate in the Company; (C) intentionally interfering with the relationship of the Company with any Person who ownership, management, operation or which is employed by or otherwise engaged to perform services forcontrol of, or be connected with (as a stockholder, partner, or otherwise), any customerbusiness, clientindividual, supplierpartner, licenseefirm, licensor corporation, or other business relation of, the Company; entity that competes or (D) assisting any Person in any way plans to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engagedcompete, directly or indirectly, in Competitive Activitieswith the Company, so long as Participant does not actively participate in its products, or any division, subsidiary or affiliate of the business of such PersonCompany; provided, however, that your “beneficial ownership,” either individually or as a member of a “group” as such terms are used in Rule 13d of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of not more than two percent (2%) of the voting stock is listed on of any publicly held corporation, shall not be a national securities exchange (for the sake violation of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof).
(c) Without limiting the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provision.
(d) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.
Appears in 2 contracts
Samples: Non Competition Agreement (Commercial Vehicle Group, Inc.), Non Competition Agreement (Commercial Vehicle Group, Inc.)
Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant agrees As part of the consideration for the compensation and benefits to be paid to Executive hereunder and the covenants made by the Company in Sections 2, 4 and 6, to protect the trade secrets and Confidential Information of the Company that Participant shall nothave been and will be entrusted to Executive immediately upon commencement of the Term and thereafter, while an employee the business goodwill of the Company and during its subsidiaries and affiliates that will be developed in and through Executive and/or the twelve business opportunities that will be disclosed or entrusted to Executive by the Company and its subsidiaries and affiliates immediately upon commencement of the Term and thereafter, and as an additional incentive for the Company to enter into this Agreement, from the Effective Date through two years following the Date of Termination (12) month period following termination of employment (such collective duration, the “Restriction Restricted Period”), Executive will not (other than for the benefit of the Company pursuant to this Agreement), and will not permit any member of the Restricted Party Group (as defined in Section 9(e)(v)) to, directly or indirectly, individually or as an officer, director, employee, shareholder, consultant, member, contractor, partner, joint venturer, agent, equity owner or in any capacity whatsoever (including without the prior written consent limitation assisting any other member of the Company:Restricted Party Group to):
(i) (A) conduct, engage in activities or businesses (including without limitation by owning any interest in, managingcarry on or assist any other Person in conducting, controllingengaging in or carrying on, participating inin any capacity, consulting withany Competing Business (as defined in Section 9(e)(ii).
(ii) induce or attempt to induce any customer, advisingsupplier, rendering services forlicensee or other business relation of the Company or any subsidiaries or affiliates of the Company with whom Executive has had direct business contact in dealings during the Term in the course of his employment with the Company, to cease doing business with the Company or any of its subsidiaries or affiliates, or in any manner engaging in way interfere with the relationship between any such customer, supplier, licensee or business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which relation and the Company does businessor any of its subsidiaries or affiliates;
(iii) own, that are principally acquire, attempt to acquire or primarily engaged solicit the acquisition of, directly or indirectly, any equity interest in any business Competing Business;
(iv) hire, attempt to hire or activity that competes contact or solicit with respect to hiring any of the businesses individual who was an employee of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in the business of such PersonTerm; provided, however, that the foregoing clause shall not prohibit (A) any general advertisement or solicitation by Executive that is not directed towards any such stock employee or group of employees of the Company or any subsidiary thereof, (B) Executive from hiring any individual who responds to such general advertisement or solicitation, so long as such individual is listed not an employee of the Company or any subsidiary thereof at the time such individual responds to such general advertisement or solicitation or (C) Executive from hiring any individual who has not worked for the Company or any of its subsidiaries at any time during the 180-day period immediately preceding the date that Executive hires such individual; or
(v) cause, influence, induce, encourage or attempt to persuade any individual employed by the Company or any subsidiary thereof to terminate his or her employment relationship with the Company or any subsidiary thereof.
(b) Nothing in this Section 9 shall prohibit any investment by Executive or any other member of the Restricted Party Group in securities of any class of the equity securities of a Competing Business, which are regularly traded or quoted on a national securities exchange (for or an inter-dealer quotation system, provided that the sake Restricted Party Group directly or indirectly collectively owns no more than 5% of claritysuch class of securities, Participant shall remain bound by and no member of the other restrictive covenants in this AgreementRestricted Party Group has the right, including but not limited through the ownership of an equity interest, voting securities or otherwise, to Section 2 hereof)direct the activities of the Competing Business.
(c) Without limiting Executive acknowledges that each of the generality covenants of Sections 9(a)(i) through (vii) are in addition to, and shall not be construed as a limitation upon, any other covenant provided in Section 79(a). Executive agrees that the geographic boundaries, notwithstanding scope of prohibited activities, and time duration of each of the fact that any provision covenants set forth in Sections 9(a)(i) through (v) are reasonable in nature and are no broader than are necessary to maintain the confidentiality and the goodwill of this Section 1 is determined not the Company’s Confidential Information, plans and services and to be specifically enforceableprotect the other legitimate business interests of the Company, including the goodwill developed by Executive with the Company’s customers, suppliers, licensees and business partners. Executive further acknowledges that, during the Term, Executive’s engagement hereunder shall necessitate, and the Company may nevertheless be entitled will provide, access to recover monetary damages as a result or the disclosure of ParticipantConfidential Information to Executive and/or that Executive’s material breach responsibilities shall include the development of such provisionthe Company’s goodwill through Executive’s contacts with the Company’s customers, suppliers, licensees and business relations.
(d) Participant acknowledges The parties hereto intend that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in each of Sections 19(a)(i) and (v) be construed as a series of separate covenants, 2one for each county or other defined province in each geographic area in which the Company conducts its business. Except for geographic coverage, 3, 4 and 5 may prevent Participant from earning a livelihood each such separate covenant shall be deemed identical in a business similar terms to the business applicable covenant contained in Sections 9(a)(i) and (v). Furthermore, each of the Companycovenants in Sections 9(a)(i) through (v) hereof shall be deemed a separate and independent covenant, Participant’s experience each being enforceable irrespective of the enforceability (with or without reformation) of the other covenants contained in Sections 9(a)(i) through (v) hereof. In the event that any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth in this Section 9 are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent that the arbitrator or court, as applicable, deems reasonable and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means the Agreement shall thereby be reformed.
(e) For purposes of support for Participant and Participant’s dependents.this Agreement:
Appears in 2 contracts
Samples: Executive Employment Agreement (Regency Energy Partners LP), Executive Employment Agreement (Regency Energy Partners LP)
Non-Competition and Non-Solicitation. For purposes of this Exhibit8.1 During the Restricted Period (as defined below), references to the Executive shall not, in the geographical area in which the Company or any of its affiliates does business or has done business at the time of his employment termination, engage in any business or enterprise that would be competitive with any business of Hasbro in existence as of the Date of Termination (a “Competitive Business”). This obligation shall include its subsidiaries preclude any involvement in a Competitive Business, whether on a direct or indirect basis, and Affiliates and references to whether as an owner, partner, officer, director, employee, consultant, investor, lender or otherwise, except as the Agreement shall refer to passive holder of not more than 1% of the outstanding stock of a publicly held company.
8.2 During the Restricted Stock Unit Agreement to which this Exhibit is attachedPeriod, provided that section references herein the Executive shall refer to sections not, either alone or in this Exhibit.
association with others, (a) Participant agrees that Participant shall notsolicit, while an recruit, induce, attempt to induce or permit any organization directly or indirectly controlled by the Executive to solicit, recruit, induce or attempt to induce any employee of the Company and or any of its affiliates to leave the employ of the Company or any of its affiliates, or (b) solicit, recruit, induce, attempt to induce for employment or hire or engage as an independent contractor, or permit any organization directly or indirectly controlled by the Executive to solicit, recruit, induce, attempt to induce for employment or hire or engage as an independent contractor, any person who is employed by the Company or any of its affiliates or who was employed by the Company or any of its affiliates at any time during the twelve term of the Executive’s employment with the Company, provided that this clause (12b) month shall not apply to any individual whose employment with the Company or any of its affiliates has been terminated for a period following termination of employment six (such collective duration6) months or longer.
8.3 During the Restricted Period, the “Restriction Period”)Executive shall not, either alone or in association with others, solicit, divert or take away, or attempt to solicit, divert or take away, or permit any organization directly or indirectlyindirectly controlled by the Executive to solicit, without the prior written consent of the Company:
(i) (A) engage in activities divert or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services fortake away, or in any manner engaging in attempt to solicit, divert or take away, the business or patronage of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses clients, customers or accounts, or prospective clients, customers or accounts of the Company or any of its affiliates, which were contacted, solicited or served by the Company or any of its affiliates at any time during the Executive’s employment with the Company.
8.4 The Restricted Period shall mean the one year period after the Executive’s employment with the Company (including any of its affiliates) ends for any reason; provided, however, that if the Executive is eligible (or would have been eligible had he timely entered into the Executive Release) to receive severance pay pursuant to Section 5.1(a) or Section 5.2(a), the Restricted Period shall run for a two-year post-employment period in the event of eligibility pursuant to Section 5.1(a), and for an eighteen-month post-employment period in the event of eligibility pursuant to Section 5.2(a).
8.5 The geographic scope of this Section 8 shall extend to anywhere the Company or any of its subsidiaries or controlled affiliates is doing business at the time of termination or expiration of this Agreement. If any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person restriction set forth in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or8 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable. Each of the parties intends that this non-competition provision shall be deemed to be a series of separate covenants, one for each country and one for each and every county or other political subdivision of each and every state or other political subdivision of each country where this provision is intended to be effective.
(ii) perform any action, activity or course 8.6 The Executive acknowledges that the restrictions contained in this Section 8 are necessary for the protection of conduct which is substantially detrimental to the businesses or business reputations and goodwill of the Company and involves (A) soliciting, recruiting or hiring (or attempting are considered by the Executive to solicit, recruit or hire) be reasonable for such purpose. The Executive agrees that any employees breach of this Section 8 will cause the Company or Persons who have worked for substantial and irrevocable damage, and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company during shall have the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting right to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor obtain and receive specific performance and injunctive relief without posting a bond or other business relation of, security.
8.7 If it is determined by a court of law that the Company; or (D) assisting Executive violated any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) 8.1, 8.2, or 8.3, he shall continue to be bound by the restrictions set forth therein until a period equal to the Restricted Period has expired without any violation of such provisions. The Executive further agrees that in the event he violates any of the provisions of Section 1(a8.1, 8.2, or 8.3 (and such violation is not cured (if capable of being cured) within thirty (30) days after the Executive receives written notice from the Company setting forth in reasonable detail the manner in which the Company believes the Executive has violated any such provision), then the Company shall not have no obligation to pay or provide any of the benefits described in Section 5.1, 5.2, or 5.3, as applicable (and, to the extent the Company previously paid or provided any such benefits, the Executive shall be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) required to immediately repay to the Company the value of any class of securities of a Person engaged, directly or indirectlysuch pay and benefits). In addition, in Competitive Activities, so long the event of any violation that is not cured as Participant does not actively participate provided in the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof).
(c) Without limiting the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceablepreceding sentence, the Company may nevertheless be entitled Executive agrees to recover monetary damages as a result of Participant’s material breach of such provision.
(d) Participant acknowledges that forfeit and pay to Hasbro the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below)total Net Proceeds obtained with respect to any unvested stock options, business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, performance share awards, contingent stock performance awards or other equity accelerated or provided pursuant to induce Participant to enter into Section 5.1 or 5.2, as applicable. For purposes of this Agreement, “Net Proceeds” shall be computed for each stock option grant accelerated pursuant to Section 5.1 or 5.2, as applicable, by multiplying the number of accelerated options times the difference between the closing price of Hasbro’s common stock on the last day of Executive’s employment and the exercise price for the grant being accelerated. Participant expressly acknowledges and agrees that “Net Proceeds” for each and every restraint imposed share of restricted stock unit accelerated pursuant to Section 5.1 or 5.2, as applicable, shall be computed by this Agreement is reasonable with respect multiplying the number of shares or units accelerated by the closing price of Hasbro’s common stock on the last day of Executive’s employment. “Net Proceeds” for each share of stock or performance share award provided pursuant to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with an unvested contingent stock performance or performance share award shall be computed by multiplying the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar number of shares or units provided pursuant to the business Award by the closing price of Hasbro’s common stock on the Companyday such shares are provided to Executive. Net Proceeds will be computed without regard to any subsequent increase or decrease, Participantif any, in the market price or actual proceeds from any sale of Hasbro’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means common stock. The foregoing amounts will be owed regardless of support for Participant and Participant’s dependentswhether or not the accelerated options have been actually exercised or the underlying shares of common stock have been actually sold.
Appears in 1 contract
Samples: Employment Agreement (Hasbro Inc)
Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to As an inducement for the Company shall include its subsidiaries to enter into this Agreement (which consideration Executive acknowledges), Executive agrees that beginning on the Effective Date and Affiliates and references to ending twelve (12) months following the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attachedRetirement Date, provided that section references herein shall refer to sections in this Exhibit.Executive will not:
(a) Participant agrees that Participant shall notdirectly or indirectly, while an employee of the Company and during the twelve (12) month period following termination of employment (such collective durationhave any ownership interest in, the “Restriction Period”)or in a competitive capacity, directly or indirectly, without the prior written consent of the Company:
(i) (A) engage in activities or businesses (including without limitation by owning any interest invest in, managingown, controllingmanage, participating inoperate, consulting finance, control, or participate in the ownership, management, operation, financing, or control of, be employed by, work for, advise, be associated with, advising, rendering services for, or in any manner engaging connected with, lend Executive’s name or any similar name to, lend Executive’s credit to, or render services or advice to, except while employed by the Company to and for the benefit of the Company, any business that, directly or indirectly, provides or offers to provide business, goods or services of the type being provided, conducted, marketed or rendered by the Company in its business including, without limitation, the business of owning, operating or managing any businessathletic specialty and/or sporting goods retail industry (the “Business”) anywhere in the United States or other countries outside of America (the United States in which the Company does business“Geographic Area”); provided, however, that Executive may purchase or otherwise acquire up to (but not more than) five percent (5%) of any class of securities of any enterprise (but without otherwise participating in the activities of such enterprise) if such securities are principally listed on any national or primarily engaged in any business regional securities exchange or activity that competes with any have been registered under Section 12(g) of the businesses Securities Exchange Act of the Company 1934 and only if Executive is a passive investor; and/or
(b) directly or indirectly, either for Executive or any of its subsidiaries other person or controlled affiliates or any entity owned by the Company entity, (“Competitive Activities”i) or (B) assisting any Person in any way to do, induce or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) induce any employee of the Company to leave the employment employ of the Company or hire any such employee, (ii) in any way interfere with the relationship between the Company and any employee of the Company, or (iii) employ, or otherwise engage as an employee, independent contractor, or otherwise, any employee of the Company; and/or.
(Cc) intentionally interfering with the relationship of the Company with any Person who directly or which is employed by or otherwise engaged to perform services forindirectly, either for Executive or any other person or entity, induce or attempt to induce any current or prospective customer, clientdealer, supplier, licensee, licensor vendor or other business relation ofof the Company to not do business with the Company or, in a competitive capacity, to do business with the Company; any other person or (D) assisting any Person entity, or in any way interfere with the relationship between any current or prospective customer, dealer, supplier, licensee, vendor or business relation of the Company. It is very important for the Company to do, or attempt protect its legitimate business interests by restricting Executive’s ability to do, anything prohibited by compete with the Company in the manner and in the area described in this Section 1(a)(ii)(A), (B) or (C) above11. The Restriction Period shall be tolled during (parties expressly agree that the terms of this limited non-competition provision under this Section 11 are reasonable, enforceable, and shall be deemed automatically extended by) any period necessary to protect the Company’s interests, and are valid and enforceable. Therefore, this Section 11 is drafted so narrowly as to safeguard the Company’s legitimate business interests while not unreasonably interfering with Executive’s ability to obtain other employment. The Company does not intend, and Executive acknowledges, that the covenants contained in which Participant is this Section 11 are not an attempt to, prevent Executive from obtaining other employment in violation of Indiana Code § 22-5-3-1. In the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in the business of such Person; providedunlikely event, however, that such stock a court of competent jurisdiction was to determine that any portion of this limited provision is listed on a national securities exchange (for unenforceable, then the sake parties agree that the remainder of clarity, Participant the limited provision shall remain bound valid and enforceable to the maximum extent possible. In the event of a breach by Executive of any covenant set forth this Section, the term of such covenant will be extended by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof).
(c) Without limiting period of the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach duration of such provisionbreach.
(d) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.
Appears in 1 contract
Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant agrees that Participant shall notDuring the Term, while an employee of the Company except as otherwise provided in this Agreement, Network Affiliate and during the twelve (12) month period following termination of employment (such collective duration, the “Restriction Period”), directly its affiliates agree not to engage or indirectly, without the prior written consent of the Company:
(i) (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or participate in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engagedhold equity interests, directly or indirectly, in Competitive Activitiesanother entity, so long as Participant does not actively whether currently existing or hereafter created, or participate in any other joint venture that competes or would compete with any business that NCM is authorized to conduct in the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in Territory pursuant to this Agreement, including but whether or not limited NCM is actually conducting such business in a particular portion of the Territory. The foregoing restrictions shall not apply (i) in the event Network Affiliate or its affiliate acquires a competing business as an incidental part of an acquisition of any other business that is not prohibited by the foregoing, if Network Affiliate disposes of the portion of such business that is a competing business as soon as commercially reasonable, (ii) to Section 2 hereof)any direct or indirect ownership or other equity investments by Network Affiliate or its affiliates in such other competing business that represents in the aggregate less than 10% of the voting power of all outstanding equity of such business, or (iii) in the event Network Affiliate enters into any agreement for the acquisition or installation of equipment or the provision of services on customary terms that does not violate the exclusivity of NCM hereunder with any entity that has other businesses and provides other services that may compete with NCM.
(cb) Without limiting During the generality Term and for a period of Section 7twelve (12) months thereafter Network Affiliate will not, notwithstanding without NCM’s prior written consent, either alone or in concert with others directly or indirectly solicit, entice, induce, or encourage: (i) any employee, contractor or agent of NCM to terminate his or her employment, contractor or agency relationship with NCM, (ii) any client of NCM to discontinue using NCM’s services or products, (iii) any client of NCM to refer prospective clients to one or more competitors of NCM or to discontinue referring prospective clients to NCM, (iv) any NCM employee, client, or prospective client to breach any agreement with NCM, or (v) any existing or proposed arrangement or other community or institutional affiliation to discontinue the fact that any provision affiliation or relationship with NCM. For purposes of this Section 1 is determined not to be specifically enforceable, 11.3 the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provisionterm NCM shall include NCM and its affiliates.
(d) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.
Appears in 1 contract
Samples: Network Affiliate Agreement (Digital Cinema Destinations Corp.)
Non-Competition and Non-Solicitation. For purposes During the Term, and for a period of one year following the expiration or termination of this ExhibitAgreement, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant Consultant agrees that Participant shall nothe will not provide services as an owner, while an employee of the Company and during the twelve (12) month period following termination of employment (such collective durationpartner, the “Restriction Period”)shareholder, joint venturer, corporate officer, director, employee, consultant, principal, agent, trustee or licensor, or in any other similar capacity whatsoever, for any person, firm, partnership, association, corporation, business organization, entity, or enterprise that is, or is about to become, directly or indirectly, without the prior written consent of the Company:
(i) (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity program that competes directly with or is substantially similar to any business or program that the Company (or any subsidiary or affiliate of the businesses of Company) was involved in (or was in the planning or development stage) during the 120-day period immediately prior to Consultant's ceasing to provide services to the Company or any subsidiary or affiliate of its subsidiaries the Company; such business or controlled affiliates program shall include, but not be limited to, those directly involved with or relating to the Field (such involvement shall hereinafter be called "Competitive Activities"). If, at any entity owned time during the a period of TWO years following the expiration or termination of this Agreement, Consultant is involved in any Competitive Activities, then Consultant shall immediately notify Company in writing of such involvement, including the name of the Business and the nature of Consultant's involvement, and Consultant agrees to fully respond to reasonable questions by the Company (“Competitive Activities”) regarding such involvement and to provide such further assurances reasonably requested by the Company that Consultant is not and will not be in breach of the Proprietary Information and Inventions Agreement attached hereto as Exhibit A. Consultant acknowledges and agrees that the Company's employees and its staff relationships with such employees are valuable assets. Therefore, Consultant further agrees that during the term of this Agreement and for a two-year period following expiration or (B) assisting any Person termination of this Agreement, he will not, as principal, independent contractor, partner, member, employer, agent, consultant, shareholder, investor, or in any way to doother individual or representative capacity whatsoever: directly or indirectly solicit, raid, entice, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) induce any employee or consultant of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is be employed by or otherwise engaged to perform services forany person, firm, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided belowcorporation.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof).
(c) Without limiting the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provision.
(d) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.
Appears in 1 contract
Samples: Consultant Agreement (Lpath, Inc)
Non-Competition and Non-Solicitation. For purposes In consideration of the Company’s entering into this ExhibitAgreement, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant Executive agrees that Participant shall not, while an employee of the Company and during the Employment Term and for a period of twelve (12) month period following months after the termination of employment (such collective duration, the “Restriction Period”), directly or indirectlyEmployment Term, without regard to its termination for any reason which does not constitute a breach of this Agreement by the Company or a resignation for Good Reason by Executive, Executive shall not, unless acting pursuant hereto or with the prior written consent of the CompanyBoard:
(ia) (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activitiesown, so long as Participant does not actively manage, operate, finance, join, control or participate in the business of such Personownership, management, operation, financing or control of, or be connected as an officer, director, employee, partner, principal, agent, representative, consultant or otherwise with, or use or permit Executive’s name to be used in connection with any Competing Business (defined below) within any state in which the Company, and/or its affiliates, currently engage in any Substantial Business Activity (defined below) or any state in which the Company, and/or its affiliates, engaged in any Substantial Business Activity during the thirty-six month period preceding the date Executive’s employment terminates; provided, however, that notwithstanding the foregoing, this provision shall not be construed to prohibit the passive ownership by Executive of not more than five percent (5%) of the capital stock of any corporation which is engaged in any Competing Business having a class of securities registered pursuant to the Exchange Act; provided, further, that notwithstanding the foregoing, the Company recognizes that Executive currently has an ownership position in two multifamily rental properties; provided, further, that Executive may invest in additional commercial real estate properties but only after giving the Company the right to make the investment on the same terms and conditions as Executive; or
(b) solicit or divert to any Competing Business any individual or entity which is an active or prospective customer of the Company, and/or its affiliates, or was such stock is listed on a national securities exchange an active or prospective customer at any time during the preceding twelve (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof).12) months; or
(c) Without limiting the generality of Section 7employ, notwithstanding the fact that attempt to employ, solicit or assist any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provision.
(d) Participant acknowledges that the Company has a legitimate business interest and right Competing Business in protecting its Confidential Information (as defined below), business strategies, employing any employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependentsand/or its affiliates, whether as an employee or consultant.
Appears in 1 contract
Samples: Employment Agreement (Independence Realty Trust, Inc)
Non-Competition and Non-Solicitation. For purposes During the Term, and for a period of one year following the expiration or termination of this ExhibitAgreement, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant Consultant agrees that Participant shall nothe will not provide services as an owner, while an employee of the Company and during the twelve (12) month period following termination of employment (such collective durationpartner, the “Restriction Period”)shareholder, joint venturer, corporate officer, director, employee, consultant, principal, agent, trustee or licensor, or in any other similar capacity whatsoever, for any person, firm, partnership, association, corporation, business organization, entity, or enterprise that is, or is about to become, directly or indirectly, without the prior written consent of the Company:
(i) (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity program that competes directly with or is substantially similar to any business or program that the Company (or any subsidiary or affiliate of the businesses of Company) was involved in (or was in the planning or development stage) during the 120-day period immediately prior to Consultant’s ceasing to provide services to the Company or any subsidiary or affiliate of its subsidiaries the Company; such business or controlled affiliates program shall include, but not be limited to, those directly involved with or any entity owned by relating to the Company Field (such involvement shall hereinafter be called “Competitive Activities”) ). If, at any time during the period two years following the expiration or (B) assisting any Person termination of this Agreement, Consultant is involved in any way Competitive Activities, then Consultant shall immediately notify Company in writing of such involvement, including the name of the Business and the nature of Consultant’s involvement, and Consultant agrees to dofully respond to reasonable questions by the Company regarding such involvement and to provide such further assurances reasonably requested by Company that Consultant is not and will not be in breach of the Proprietary Information and Inventions Agreement attached hereto as Exhibit A. Consultant acknowledges and agrees that the Company’s employees and its staff relationships with such employees are valuable assets. Therefore, Consultant further agrees that during the term of this Agreement and for a two-year period following expiration or termination of this Agreement, he will not, as principal, independent contractor, partner, member, employer, agent, consultant, shareholder, investor, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform in any action, activity other individual or course of conduct which is substantially detrimental to the businesses representative capacity whatsoever: directly or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to indirectly solicit, recruit raid, entice, or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) induce any employee or consultant of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is be employed by or otherwise engaged to perform services forany person, firm, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided belowcorporation.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof).
(c) Without limiting the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provision.
(d) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.
Appears in 1 contract
Samples: Consultant Agreement (Lpath, Inc)
Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant Seller acknowledges that an important part of the benefit that Purchaser will receive in connection with the transactions contemplated hereby is the ability to conduct the Business free from competition from Seller and its Affiliates. In order that Purchaser may enjoy such benefits, Seller hereby agrees that Participant during the period of five (5) years from the Closing Date (the “Non-Competition Period”): (i) Seller shall not, while directly or indirectly, (A) engage or participate or have any ownership or other financial interest in, or in any way assist, authorize or grant rights to (as an employee, agent, consultant, investor, partner, shareholder or otherwise) any Person to engage in, any business or enterprise that competes in the business of providing Products in the Field of Use in the Non-Competition Area, (B) research, develop, manufacture, distribute, market, promote, or otherwise commercialize, or in any way assist, authorize or grant any rights to any Person to research, develop, manufacture, distribute, market, promote, or otherwise commercialize, any Product that competes in the Field of Use in the Non-Competition Area, (C) induce any employee or consultant of Purchaser in the Non-Competition Area to (1) terminate such person’s employment with Purchaser (in the case of a then current employee), or cease providing services to Purchaser (in the case of a then current consultant), (2) engage in any of the activities prohibited to Seller under clauses (A) or (B) above; (3) hire or encourage any Person to hire any employee of Purchaser or any person who was an employee of the Company and Purchaser during the twelve (12) month period following termination preceding the date of employment proposed hire; or (such collective duration4) divert, solicit or attempt to divert, or assist or encourage any Person in diverting, soliciting or attempting to divert, to or for any business or enterprise in competition with Purchaser, any customer or supplier of Purchaser; provided, however, that, the “Restriction Period”), directly or indirectly, without the prior written consent of the Company:
foregoing shall not prohibit Seller from (i) (A) engage acquiring, solely as an investment, securities of any Person engaged in activities a business competitive with the Business listed on a national securities exchange or businesses regularly traded in the over-the-counter market (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does businesssuch Person that is subsequently taken private); provided, that are principally or primarily engaged in any business or activity that competes with any of the businesses of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person in any way to dosuch ownership, or attempt to docollectively, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall does not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three exceed one percent (31%) of any class of securities of a such Person engagedand that Seller’s involvement with such Person does not include the active control, operations or management of such Person in the Non-Competition Area, or (ii) participating, directly or indirectly, in Competitive Activitiesthe research, so long development, manufacture, commercialization or sale of products containing the Excluded Strain as Participant does their primary active ingredient solely for use as a prescription pharmaceutical product for the treatment of cardiovascular disease.
(b) Seller agrees and acknowledges that the duration and scope of the covenant not actively participate to compete, the non-solicitation/no-hire, and other provisions described in this Section 9.1 are fair, reasonable, and necessary in order to protect the business legitimate interests of Purchaser, and that adequate consideration has been received by Seller for such Person; providedobligations. If, however, for any reason any court determines that the restrictions in this Section 9.1 are not reasonable or that such stock consideration is listed on a national securities exchange (for inadequate, such restrictions shall be interpreted, modified or rewritten to include as much of the sake of clarityduration, Participant shall remain bound by the other restrictive covenants scope, and geographic area identified in this Agreement, including but not limited to Section 2 hereof)9.1 as will render such restrictions valid and enforceable.
(c) Without limiting the generality of Section 7, notwithstanding the fact Seller acknowledges that any provision breach of the provisions contained in this Section 1 is determined not 9.1 will result in serious and irreparable injury to be specifically enforceablePurchaser. Therefore, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provision.
(d) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly Seller acknowledges and agrees that each in the event of a breach by Seller of these provisions, Purchaser shall be entitled to, in addition to any other remedy at law or in equity to which Purchaser may be entitled, equitable relief against Seller, including, without limitation, an injunction to restrain Seller from such breach and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compel compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business obligations of the Companyother parties hereunder in protecting or enforcing Purchaser’s rights and remedies, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means all without the necessity of support for Participant and Participant’s dependentsposting of any bond.
Appears in 1 contract
Samples: Asset Purchase Agreement (Schiff Nutrition International, Inc.)
Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to 9.1 During the Restricted Stock Unit Agreement to which this Exhibit is attachedPeriod (as defined below), provided that section references herein shall refer to sections in this Exhibit.
(a) Participant agrees that Participant the Executive shall not, while an employee in the geographical area in which the Company or any of its affiliates does business or has done business at the time of his employment termination, engage in any business or enterprise that would be competitive with any business of the Company (inclusive of all of its subsidiaries, divisions and during affiliates, including, without limitation, Wizards of the twelve Coast) in existence as of the Date of Termination (12) month period following termination a “Competitive Business”). This obligation shall preclude any involvement in a Competitive Business, whether on a direct or indirect basis, and whether as an owner, partner, officer, director, employee, consultant, investor, lender or otherwise, except as the passive holder of employment (such collective durationnot more than 1% of the outstanding stock of a publicly-held company.
9.2 During the Restricted Period, the “Restriction Period”)Executive shall not, directly or indirectly, without the prior written consent of the Company:
(i) (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, either alone or in association with others, (a) solicit, recruit, induce, attempt to induce or permit any manner engaging in organization directly or indirectly controlled by the business of owningExecutive to solicit, operating recruit, induce or managing attempt to induce any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses employee of the Company or any of its subsidiaries or controlled affiliates or any entity owned by to leave the Company (“Competitive Activities”) or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees employ of the Company or Persons any of its affiliates, or (b) solicit, recruit, induce, attempt to induce for employment or hire or engage as an independent contractor, or permit any organization directly or indirectly controlled by the Executive to solicit, recruit, induce, attempt to induce for employment or hire or engage as an independent contractor, any person who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is employed by the Company or otherwise engaged any of its affiliates or who was employed by the Company or any of its affiliates at any time during the term of the Executive’s employment with the Company, provided that this clause (b) shall not apply to perform services forany individual whose employment with the Company or any of its affiliates has been terminated for a period of six (6) months or longer. For purposes of this Agreement, “affiliates” means entities controlling, controlled by, or any customer, client, supplier, licensee, licensor or other business relation ofunder common control with, the Company; or (D) assisting any Person in any way , and “control” means the ability to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation exercise more than 50% of the provisions of this Section 1(a) unless provided belowvoting interests or otherwise control management.
(b) The provisions of Section 1(a) 9.3 During the Restricted Period, the Executive shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engagednot, directly or indirectly, either alone or in Competitive Activitiesassociation with others, so long as Participant does not actively participate in solicit, divert or take away, or attempt to solicit, divert or take away, or permit any organization directly or indirectly controlled by the Executive to solicit, divert or take away, or attempt to solicit, divert or take away, the business or patronage of such Person; providedany of the clients, howevercustomers or accounts, that such stock is listed on a national securities exchange (for or prospective clients, customers or accounts of the sake Company or any of clarityits affiliates, Participant shall remain bound which were contacted, solicited or served by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof).
(c) Without limiting the generality of Section 7, notwithstanding the fact that Company or any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provision.
(d) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, affiliates at any time period and geographical area. Participant further acknowledges that although Participantduring the Executive’s compliance employment with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.
Appears in 1 contract
Samples: Employment Agreement (Hasbro, Inc.)
Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant agrees that Participant shall notBecause of the Company’s legitimate business interests and in consideration of the good and valuable consideration offered in granting the PSUs to Grantee, while an employee during the term of Grantee’s employment with the Company and during for the Restricted Period (defined below), the Grantee agrees and covenants not to:
(i) directly or indirectly, in whole or in part, engage in, provide services to, or otherwise participate in, whether as an employee, employer, owner, operator, manager, advisor, consultant, agent, officer, partner, director, shareholder, volunteer, intern or in any other similar capacity to an entity engaged in a Competitive Business (as defined below);
(ii) directly or indirectly, (A) solicit, hire, attempt to hire, engage, contract with or recruit any Company Employee (as defined below), or (B) induce or otherwise advise or encourage any Company Employee to terminate or alter his or her employment with the Company; or
(iii) directly or indirectly, solicit, contact (including but not limited to, verbal, email, regular mail, express mail, telephone, fax, and instant message), attempt to contact or meet with the current or prospective business partners or counterparties (or business partners or counterparties that have engaged in business or financial transactions with the Company and its subsidiaries within the twelve (12) month period following termination preceding the Grantee’s Termination of employment Service).
(b) If the Grantee breaches any of the restrictive covenants set forth in Section 7(a):
(i) all unvested Equity Awards (as defined below) made to Grantee pursuant to the Plan shall be immediately forfeited;
(ii) the Grantee shall be required to disgorge to the Company any shares of Common Stock issued to Grantee upon the vesting and settlement of any Equity Awards, or the proceeds of any sales of such collective durationshares of Common Stock issued to Grantee upon the vesting and settlement of such Equity Awards, which occurred during the “Restriction Restricted Period”); and
(iii) the Grantee hereby consents and agrees that the Company shall be entitled to seek, directly in addition to other available remedies, a temporary or indirectlypermanent injunction or other equitable relief against such breach or threatened breach from any court of competent jurisdiction, without the prior written consent necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the Companynecessity of posting any bond or other security. The aforementioned equitable relief shall be in addition to, not in lieu of, legal remedies, money damages or other available forms of relief.
(c) The prohibitions in Section 7(a) do not, in any way, restrict or impede the Grantee from:
(i) Purchasing or owning less than five percent (A5%) engage of the publicly traded securities of any corporation (even if such corporation is engaged in activities or businesses (including without limitation by owning any interest ina Competitive Business), managing, controlling, participating in, consulting with, advising, rendering services forprovided that such ownership represents a passive investment and that the Grantee is not a controlling person or, or in any manner engaging in the business a member of owninga group that controls, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) abovesuch corporation; or
(ii) perform any action, activity or course of conduct which is substantially detrimental Exercising protected rights to the businesses extent that such rights cannot be waived by this Agreement or business reputations from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency, provided that such compliance does not exceed that required by the Company and involves law, regulation or order (A) solicitingand, recruiting or hiring (or attempting in such event, Grantee shall promptly provide written notice of any such order to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A’s General Counsel), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof).
(c) Without limiting the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provision.
(d) Participant acknowledges that For the Company has a legitimate business interest and right in protecting its Confidential Information (as defined purposes of Section 7, the following terms have the meanings ascribed to them below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.:
Appears in 1 contract
Samples: Performance Share Unit Agreement (Two Harbors Investment Corp.)
Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant agrees that Participant shall not, while an employee of During your employment with the Company and during the for twelve (12) month period months following the termination of such employment for any reason (such collective duration, the “Restriction Restricted Period”), you shall not, anywhere within the United States of America (the “Restricted Territory”), directly or indirectly, without the prior written consent of the Company:
(i) indirectly (A) engage in activities for your own benefit or businesses for the benefit of any third party (including without limitation by owning B) otherwise own, manage, operate, control, advise, be employed by, or participate in the ownership, management, operation or control of, or provide competitive services to, any interest person or entity that is engaged in, managingin either case, controlling, participating in, consulting with, advising, rendering services fora business that is in the same or similar business and competitive with the business conducted by, or in any manner engaging in the business of owningactively planned to be conducted by, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, otherwise competitive with that are principally or primarily engaged in any business or activity that competes with any of the businesses of the Company (or any of its subsidiaries or controlled affiliates or engaged in the same business) (any entity owned by such business, a “Competing Business”). Notwithstanding the Company (“Competitive Activities”) or (B) assisting any Person in any way to doforegoing, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s your passive ownership of less than solely as an aggregate investor of three percent (3%) or less of the outstanding securities of any class of any publicly-traded securities of a Person engagedany company shall not, by itself, be considered to be competition with the Company. During the Restricted Period, you also shall not, directly or indirectly: (i) persuade or attempt to persuade any customer or client, or any potential customer or client to which you have (or an employee who reports to you has or had) made a presentation or with respect to which you had access to confidential or proprietary information, (A) not to hire, engage or purchase products or services from the Company or its affiliates or (B) to hire, engage or purchase products or services from another entity or person in Competitive Activities, so long connection with a Competing Business within the Restricted Territory; or (ii) solicit for employment or hire (or solicit for engagement as Participant does not actively participate in an independent contractor or engage as an independent contractor) any employee (or independent contractor) of the business of such Person; provided, however, that such stock is listed on a national securities exchange Company or its affiliates (for the sake of clarity, Participant shall remain bound or any person who was employed (or engaged) by the other restrictive covenants in this AgreementCompany or its affiliates within the 12-month period prior to such solicitation, including but not limited hiring or engagement, as applicable (or, if following the termination of your employment, the 12-month period prior to Section 2 hereofsuch termination).
(c) Without limiting the generality of Section 7, notwithstanding the fact that or otherwise encourage any provision of this Section 1 is determined not to be specifically enforceableemployee of, or independent contractor with, the Company may nevertheless be entitled or its affiliates to recover monetary damages as a result of Participant’s material breach of such provision.
(d) Participant acknowledges that terminate his or her employment with or engagement by the Company has or its affiliates or accept employment or a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that consulting relationship with any entity or person other than the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependentsaffiliates.
Appears in 1 contract
Non-Competition and Non-Solicitation. For purposes a. By entering into this Agreement, you acknowledge the Confidential Information has been and will be developed and acquired by the Company by means of this Exhibitsubstantial expense and effort, references that the Confidential Information is a valuable asset of the Company, that the unauthorized disclosure or misuse of the Confidential Information to anyone would cause substantial and irreparable injury to the Company shall include its subsidiaries Company.
b. In exchange for consideration paid or to be paid to you under the CIC Agreement and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections additional considerations specified in this Exhibit.
(a) Participant agrees Agreement, the adequacy of which you expressly acknowledge, you agree that Participant shall notduring your employment by the Company, while an employee and for a period of the Company and during the twelve (12) month period months following termination of employment (such collective durationyour separation, the “Restriction Period”)you shall not, directly or indirectly, without the prior written consent of the Company:
(i) (A) engage in activities or businesses (including without limitation by owning any interest inas an owner, managingshareholder, controllingofficer, participating inemployee, consulting withmanager, advisingconsultant, rendering services forindependent contractor, or in any manner engaging in the business of owningotherwise: i. Directly or indirectly call on, operating induce, solicit or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person in any way to dotake away, or attempt to docall on, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any actioninduce, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) take away, in connection with or on behalf of any employees of activity in competition with the Company Company’s then-current business, any person or Persons entity who have worked for the Company during the twelve (12) month period immediately preceding such solicitationwas a vendor, recruitment customer, or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment prospective customer of the Company; (C) intentionally interfering with , for the relationship purpose or result that the vendor, customer, or prospective
c. The covenants contained in this Section 8 shall be construed as independent of any other provisions or covenants, and the existence of any claim or cause of action by you against the Company, whether predicated on this Agreement or otherwise, or the actions of the Company with any Person who or which is employed respect to enforcement of similar restrictions as to other employees, shall not constitute a defense to the enforcement by or otherwise engaged the Company of the covenants. You acknowledge and agree that the Company has invested great time, effort and expense in its business and reputation, and that the services performed by you, and the information divulged to perform services foryou, are unique and extraordinary, and you agree that the Company shall be entitled, upon a breach of this Section of this Agreement, to injunctive relief against such activities, or any customer, client, supplier, licensee, licensor other remedies available to the Company at law or other business relation of, the Company; or (D) assisting equity. If you shall have breached any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) Agreement, and if the Company shall not be deemed breached as bring legal action for injunctive relief, such relief shall, at a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engagedminimum, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in have the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants duration specified in this Agreement, including commencing from the date such relief is granted, but not limited to Section 2 hereof).
(c) Without limiting reduced only by the generality period of Section 7, notwithstanding time elapsed between the fact that any provision termination date and your first breach of this Section 1 is determined Agreement. The obligations contained in this Agreement shall survive the termination of the employment relationship. Any specific right or remedy set forth in this Agreement, legal, equitable or otherwise, shall not to be specifically enforceableexclusive, but shall be cumulative upon all other rights and remedies set forth herein, or allowed or allowable by this Agreement, the CIC Agreement or by law. The failure of the Company may nevertheless be entitled to recover monetary damages as enforce any of the provisions of this Agreement, any other agreement with you, or the provisions of any agreement with any other employee, shall not constitute a result waiver or limit any of Participant’s material breach the rights of such provision.
(d) Participant acknowledges the Company. You agree that the Company has a legitimate business interest and attempted to limit your right in protecting its Confidential Information to compete only to the extent necessary to protect the Company from unfair competition. We further agree that if for any reason the restrictions set forth above are too broad or otherwise unenforceable at law, then they, or any one of them, shall be reduced to such area, time, or terms, as shall be legally enforceable. If it is judicially determined that this Agreement, or any portion thereof, is illegal or offensive under any applicable law (as defined belowstatute, common law, or otherwise), business strategies, employee then it is hereby agreed the non- competition covenant shall be revised and customer relationships shall be in full force and goodwill, and that effect to the Company would be seriously damaged full extent permitted by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwilllaw. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into By this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by , we intend to have this Agreement is reasonable with respect not to subject matter, time period compete and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained not to solicit be in Sections 1, 2, 3, 4 full force and 5 may prevent Participant from earning a livelihood in a business similar effect to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependentsgreatest extent permissible.
Appears in 1 contract
Samples: Separation Agreement (Commercial Vehicle Group, Inc.)
Non-Competition and Non-Solicitation. For purposes of this ExhibitDuring the Term, references subject to the exceptions herein, Retiring Employee covenants and agrees with the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant agrees that Participant Retiring Employee shall not, while an employee of the Company and during the twelve (12) month period following termination of employment (such collective duration, the “Restriction Period”), directly or indirectly, without the prior written consent individually, through an Affiliate or otherwise (including as an officer, employee or consultant, but specifically excluding service on any board of the Company:
directors or comparable bodies, whether for profit or not-for-profit) own an interest or engage in, participate with or provide any financial or other support, assistance or advice to any Competing Business; provided, however, that Retiring Employee may (i) when taken together with the ownership, directly or indirectly, of all of his Affiliates, own, solely as an investment, up to 5% of any class of securities of any Person if such securities are listed on any national securities exchange or traded on the Nasdaq Stock Market so long as Retiring Employee is not an officer, employee of, or analogously employed or engaged by (Aother than as a director (or comparable position)), such Person or any of such Person’s Affiliates or (ii) engage in activities own securities issued by the Company. In addition, Retiring Employee agrees that during the Term he shall not, directly or businesses indirectly: (including without limitation by owning 1) endeavor to entice away from the Company or any interest inof its Affiliates any individual or entity who was or is a material customer, managingmaterial supplier or material business relation or otherwise interfere with the relationship between the Company or its Affiliate and such material customer, controllingsupplier or business relation, participating in, consulting (2) establish (or take preliminary steps to establish) a business with, advisingor cause or attempt to cause others to establish (or take preliminary steps to establish) a business with, rendering services for, any employee or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses agent of the Company or any of its subsidiaries Affiliates, if such business competes with or controlled affiliates will compete with the Company or any entity owned by the Company (“Competitive Activities”) of its Affiliates, or (B3) assisting any Person in any way to doemploy, engage as a consultant or adviser, or attempt to dosolicit employment, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform engagement as a consultant or adviser, of any action, activity employee or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees agent of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services forits Affiliates, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, cause or attempt to docause any individual or entity to do any of the foregoing. Retiring Employee agrees that the restrictions contained in this Section 2 are necessary to protect Company’s goodwill and confidential information the Company has provided to Retiring Employee. Notwithstanding the foregoing, anything prohibited by Section 1(a)(ii)(Athe parties expressly acknowledge and agree that nothing herein shall prohibit Retiring Employee from serving on the boards of directors (or comparable bodies), or committees thereof, of any entity (Bincluding an entity that constitutes a Competing Business) so long as Retiring Employee’s duties on the board (or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%comparable body) of any class of securities Competing Business are consistent with those customary of a Person engaged, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate board member in the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof)industry.
(c) Without limiting the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provision.
(d) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.
Appears in 1 contract
Samples: Retirement Agreement (Newfield Exploration Co /De/)
Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant The Stockholder hereby agrees that Participant shall during the period commencing on the date hereof and ending on the date which is the later of five (5) years after the date hereof or two (2) years after termination of Stockholder's employment with the Company, if any, it will not, while an employee without the express written consent of the Company and during the twelve (12) month period following termination of employment (such collective duration, the “Restriction Period”)Company, directly or indirectly, without the prior written consent of the Company:
(i) (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which any foreign country where the Company does has conducted business, that are principally is conducting business or primarily engaged is presently contemplating conducting business, (a) engage in any business activity which is or activity that competes (b) participate or invest in, provide or facilitate the provision of financing to, or assist (whether as owner, part-owner, shareholder, member, partner, director, officer, trustee, employee, agent or consultant, or in any other capacity) any business, organization or person other than the Company (or any subsidiary of the Company), including any such business, organization or person involving, or which is, a family member of the Stockholder, whose business, activities, products or services are competitive with any of the businesses business, activities, products or services conducted or offered by the Company or any of its subsidiaries, which business, activities, products and services shall include in any event and without limitation the Company Business. Without implied limitation, the forgoing covenant shall be deemed to prohibit (a) hiring or engaging or attempting to hire or engage for or on behalf of the Stockholder or any such competitor any officer or employee of the Company or any of its subsidiaries, or any former employee of the Company and any of its subsidiaries who was employed during the six (6) month period immediately preceding the date hereof, (b) encouraging for or on behalf of the Stockholder or any such competitor any such officer or employee to terminate its relationship or employment with the Company or any of its subsidiaries, (c) soliciting for or on behalf of the Stockholder or any such competitor any client of the Company or any of its subsidiaries or controlled affiliates or and (d) diverting to any entity owned by the Company (“Competitive Activities”) or (B) assisting person any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any action, activity or course of conduct which is substantially detrimental to the businesses client or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees opportunity of the Company or Persons who have worked for any of any of its subsidiaries. Notwithstanding anything herein to the contrary, the Stockholder may make passive investments in any publicly traded enterprise if such investment constitutes less than one percent (2%) of the equity of such enterprise. Neither the Stockholder nor any business entity controlled by the Stockholder is a party to any contract, commitment, arrangement or agreement which could, following the date hereof, restrain or restrict the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee subsidiary of the Company to leave from carrying on its business or restrain or restrict the Stockholder from performing the Stockholder's employment obligations, and, as of the Company; (C) intentionally interfering with date of this Agreement, the relationship of Stockholder has no business interests whatsoever in or relating to the industries in which the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or and its subsidiaries currently engage other business relation of, than the Company; or (D) assisting any Person Stockholder's interest in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (the Company and shall be deemed automatically extended by) any period other than interests in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership public companies of less than an aggregate of three one percent (32%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof).
(c) Without limiting the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provision.
(d) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.
Appears in 1 contract
Samples: Non Competition Agreement (Eagle Test Systems, Inc.)
Non-Competition and Non-Solicitation. For purposes In consideration of the Company’s entering into this ExhibitAgreement, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant Executive agrees that Participant shall not, while an employee of the Company and during the Employment Term and for a period of twelve (12) month period following months after the termination of employment (such collective duration, the “Restriction Period”), directly or indirectlyEmployment Term, without regard to its termination for any reason which does not constitute a breach of this Agreement by the Company or a resignation for Good Reason by Executive, Executive shall not, unless acting pursuant hereto or with the prior written consent of the Company:Board: #56963029 v4
(ia) (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activitiesown, so long as Participant does not actively manage, operate, finance, join, control or participate in the business of such Personownership, management, operation, financing or control of, or be connected as an officer, director, employee, partner, principal, agent, representative, consultant or otherwise with, or use or permit Executive’s name to be used in connection with any Competing Business (defined below) within any state in which the Company, and/or its affiliates, currently engage in any Substantial Business Activity (defined below) or any state in which the Company, and/or its affiliates, engaged in any Substantial Business Activity during the thirty-six month period preceding the date Executive’s employment terminates; provided, however, that notwithstanding the foregoing, this provision shall not be construed to prohibit the passive ownership by Executive of not more than five percent (5%) of the capital stock of any corporation which is engaged in any Competing Business having a class of securities registered pursuant to the Exchange Act; or
(b) solicit or divert to any Competing Business any individual or entity which is an active or prospective customer of the Company, and/or its affiliates, or was such stock is listed on a national securities exchange an active or prospective customer at any time during the preceding twelve (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof).12) months; or
(c) Without limiting the generality of Section 7employ, notwithstanding the fact that attempt to employ, solicit or assist any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provision.
(d) Participant acknowledges that the Company has a legitimate business interest and right Competing Business in protecting its Confidential Information (as defined below), business strategies, employing any employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependentsand/or its affiliates, whether as an employee or consultant.
Appears in 1 contract
Samples: Employment Agreement (Independence Realty Trust, Inc.)
Non-Competition and Non-Solicitation. For purposes (a) Executive and the Company agree to the non-competition and non-solicitation provisions of this Exhibit, references to Section 7.02 in consideration for the confidential information provided by the Company shall include its subsidiaries to Executive pursuant to this Agreement, to protect the trade secrets and Affiliates confidential information of the Company disclosed or entrusted to Executive by the Company or created or developed by Executive for the Company, to protect the business goodwill of the Company developed through the efforts of Executive and/or the business opportunities disclosed or entrusted to Executive by the Company and references as an additional incentive for the Company to the Agreement shall refer to the Restricted Stock Unit Agreement to which enter into this Exhibit is attached, provided that section references herein shall refer to sections in this ExhibitAgreement.
(ab) Participant Subject to the exceptions set forth in Section 7.02(c), Executive expressly covenants and agrees that Participant shall not, while an employee of during the period Executive is employed by the Company hereunder and during for one year following the twelve end of Executive’s employment with the Company (12) month period following termination of employment (such collective duration, the “Restriction Prohibited Period”)) (i) Executive will refrain from carrying on or engaging in, directly or indirectly, without any Competing Business in the prior written consent Restricted Area and (ii) Executive will not, and Executive will cause Executive’s affiliates not to, directly or indirectly, own, manage, operate, join, become an employee of, partner in, owner or member of (or an independent contractor to), control or participate in, be connected with or loan money to, sell or lease equipment or property to, or otherwise be affiliated with any business, individual, partnership, firm, corporation or other entity which engages in a Competing Business in the Restricted Area, as Executive expressly agrees that each of the Company:
(i) (A) engage foregoing activities would represent carrying on or engaging in activities a Competitive Business, as prohibited by this Section 7.02(b). “Competing Business” means any business, individual, partnership, firm, corporation or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, other entity which wholly or in any manner engaging significant part engages in any business competing with the Business in the business Restricted Area; “Restricted Area” means the acreage outside of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which (x) the Company does businessconducts operations or owns assets or (y) prior to termination of Executive’s employment, that are principally or primarily engaged in any business or activity that competes with any of the businesses of Board has authorized the Company to conduct operations or own assets, and any acreage that directly abuts such acreage; and “Business” means the exploration for, and the development and production of, oil and natural gas and the acquisition of its subsidiaries leases, real property and other contracts and similar interests in connection therewith, as such business may be expanded or controlled affiliates or any entity owned altered by the Company (“Competitive Activities”) or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the Executive’s employment of by the Company; (C) intentionally interfering with provided, that any business or endeavor shall cease to be the relationship of “Business” if the Company with any Person who is not or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof).
(c) Without limiting the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not ceases to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of engaged in such provisionbusiness or endeavor.
(d) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.
Appears in 1 contract
Samples: Executive Employment Agreement (Kosmos Energy Ltd.)
Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant agrees that Participant shall During the Employee’s employment and for a period of one (1) year after the termination or expiration thereof for any reason, the Employee will not, while an employee of the Company and during the twelve (12) month period following termination of employment (such collective duration, the “Restriction Period”), directly or indirectly, without the prior written consent of the Company:
(i) (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, geographical areas that are principally or primarily engaged in any business or activity that competes with any of the businesses of the Company or any of its subsidiaries does business or controlled affiliates has done business at the time of the Employee’s separation from employment, directly or indirectly:
(i) engage in any entity owned business or enterprise (whether as owner, partner, officer, director, employee, consultant, investor, lender or otherwise, except as the holder of not more than one percent (1%) of the outstanding stock of a publicly-held company) relying on competitive technologies similar to the Company’s core technologies to develop biosimilar or generic pharmaceuticals or that sells directly competing products or services in the same therapeutic class as proprietary pharmaceuticals developed, by the Company (“Competitive Activities”) or (B) assisting any Person in any way to do, or attempt to do, anything prohibited of its subsidiaries while the Employee was employed by this Section 1(a)(i)(A) abovethe Company; or
(ii) perform any action, activity either alone or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves in association with others: (A) solicitingsolicit, recruiting or hiring (or attempting recruit, induce, attempt to solicit, recruit or hire) induce, or permit any employees of organization directly or indirectly controlled by the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitationEmployee to solicit, recruitment or hiring recruit, induce, or attempt thereof; (B) soliciting to solicit, recruit or encouraging (or attempting to solicit or encourage) induce any employee of the Company to leave the employment employ of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (DB) assisting solicit, recruit, induce, attempt to solicit, recruit or induce for employment or as an independent contractor, or permit any Person organization directly or indirectly controlled by the Employee to solicit, recruit, induce, attempt to solicit, recruit or induce for employment or as an independent contractor, any person who was employed by the Company at any time during the Employment Period; provided, however, that subsection 9(a)(ii)(B) shall not apply to any individual whose employment or engagement with the Company has been terminated for a period of six (6) months; provided further, that if an individual covered by this section initiates contact with the Employee for purposes of employment with the Employee or with any entity the Employee is employed by, the mere referral by the Employee of such individual to another person at such entity shall not breach this section; or
(iii) either alone or in any way to doassociation with others, solicit, divert or take away, or attempt to dosolicit, anything prohibited divert or take away, or permit any organization directly or indirectly controlled by the Employee to solicit, divert or take away, or attempt to solicit, divert or take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company, which were contacted, solicited or served by the Company at any time while employed pursuant to this Agreement.
(b) If the Employee violates the provisions of Section 1(a)(ii)(A)9, the Employee shall continue to be bound by the restrictions set forth in this Section 9 until a period of one (B1) year has expired without any violation of such provisions.
(c) If any restriction set forth in this Section 9 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(Cd) aboveThe restrictions contained in this Section 9 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Restriction Period Employee agrees that any breach of this Section 9 is likely to cause the Company substantial and irrevocable damage that is difficult to measure. Therefore, in the event of any such breach or threatened breach, the Employee agrees that the Company, in addition to such other remedies that may be available, shall be tolled during (have the right to obtain an injunction from a court restraining such a breach or threatened breach and shall be deemed automatically extended by) any period in which Participant is in violation the right to specific performance of the provisions of this Section 1(a) unless provided below.
(b) The provisions 9 without posting a bond and the Employee hereby waives the adequacy of Section 1(a) shall not be deemed breached a remedy at law as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in the business of defense to such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof)relief.
(c) Without limiting the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provision.
(d) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.
Appears in 1 contract
Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant agrees that Participant shall notAs part of the consideration for the compensation and benefits to be paid to Executive hereunder, while an employee to protect Confidential Information of the Company and during the twelve (12) month period following termination of employment (such collective durationits customers and clients that have been and will be entrusted to Executive, the business goodwill of the Company and its subsidiaries that will be developed in and through Executive and the business opportunities that will be disclosed or entrusted to Executive by the Company and its subsidiaries, and as an additional incentive for the Company to enter into this Agreement, if termination is a result of Executive’s voluntary termination without Good Reason under Section 6(a), or by the Company for Cause under Section 6(b), from the date hereof through the one (1) year anniversary of the Date of Termination (the “Restriction Restricted Period”), Executive will not (other than for the benefit of the Company pursuant to this Agreement), directly or indirectly, without the prior written consent of the Company:
(i) engage in, or carry on or assist, individually or as a principal, owner, officer, director, employee, shareholder, consultant, contractor, partner, member, joint venturer, agent, equity owner or in any other capacity whatsoever (in any such capacity, an “Investor”), any (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in business directly competitive with the business of owning, operating in which the Company is engaged from time to time (“Competing Business”) or managing any business(B) anywhere in Business Enterprise (as defined below) that is otherwise directly competitive with the United States or other countries outside Company within the United States states in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or;
(ii) perform for any actioncorporation, activity partnership, limited liability company, sole proprietorship, joint venture or course of conduct which is substantially detrimental to the businesses other business association or business reputations of the Company and involves entity (Aa “Business Enterprise”) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) engaged in any employees of the Company or Persons who have worked Competing Business any duty Executive has performed for the Company during the twelve that involved Executive’s access to, or knowledge or application of, Confidential Information;
(12iii) month period immediately preceding such solicitation, recruitment or hiring induce or attempt thereof; (B) soliciting to induce any customer, supplier, licensee or encouraging (or attempting to solicit or encourage) any employee other business relation of the Company to leave cease doing business with the employment of the Company; (C) intentionally interfering Company or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and the Company;
(iv) induce or attempt to induce any customer, supplier, licensee or other business relation of the Company with whom Executive had direct business contact in dealings during the Employment Period in the course of his employment with the Company to cease doing business with the Company or in any Person who or which is employed by or otherwise engaged to perform services for, or way interfere with the relationship between any such customer, client, supplier, licensee, licensor licensee or other business relation of, and the Company; or
(v) solicit with the purpose of hiring or (D) assisting hire any Person in any way person who is or, within 180 days after such person ceased to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation an employee of the provisions Company, was an employee of this Section 1(a) unless provided belowthe Company.
(b) The provisions Notwithstanding the foregoing restrictions of this Section 1(a11, nothing in this Section 11 shall prohibit (i) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engagedinvestment by Executive, directly or indirectly, in Competitive Activitiessecurities which are issued by a Business Enterprise involved in or conducting a Competing Business, so long as Participant provided that Executive, directly or indirectly, does not actively participate own more than five percent (5%) of the outstanding equity or voting securities of such Business Enterprise or (ii) Executive, directly or indirectly, from owning any interest in any Business Enterprise which conducts a Competing Business if such interest in such Business Enterprise is owned as of the date of this Agreement and Executive does not have the right, in the case of (i) or (ii), through the ownership of a voting interest or otherwise, to direct the activities of or associated with the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof)Business Enterprise.
(c) Without limiting Executive acknowledges that each of the generality covenants of Section 711(a) are in addition to, notwithstanding the fact that any provision of this Section 1 is determined and shall not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages construed as a result limitation upon, any other covenant provided in Section 11(a). Executive agrees that the geographic boundaries, scope of Participantprohibited activities, and time duration of each of the covenants set forth in Section 11(a) are reasonable in nature and are no broader than are necessary to maintain the confidentiality and the goodwill of the Company’s material breach proprietary and Confidential Information, plans and services and to protect the other legitimate business interests of such provisionthe Company, including without limitation the goodwill developed by Executive with Company’s customers, suppliers, licensees and business relations.
(d) Participant acknowledges that If, during any portion of the Restricted Period, Executive is not in compliance with the terms of Section 11(a), the Company has a legitimate business interest and right shall be entitled to, among other remedies, compliance by Executive with the terms of Section 11(a) for an additional period of time (i.e., in protecting its Confidential Information addition to the Restricted Period) that shall equal the period(s) over which such noncompliance occurred.
(as defined below), business strategies, employee and customer relationships and goodwill, and e) The parties hereto intend that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1Section 11(a) be construed as a series of separate covenants, 2one for each defined province in each geographic area in which Executive on behalf of the Company conducts business. Except for geographic coverage, 3, 4 and 5 may prevent Participant from earning a livelihood each such separate covenant shall be deemed identical in a business similar terms to the business applicable covenant contained in Section 11(a). Furthermore, each of the Companycovenants in Section 10(a) shall be deemed a separate and independent covenant, Participant’s experience and capabilities are such that Participant has each being enforceable irrespective of the enforceability (with or without reformation) of the other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependentscovenants contained in Section 11(a).
Appears in 1 contract
Samples: Employment Agreement (Vanguard Natural Resources, LLC)
Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to The Grantee agrees that during his/her employment with the Company and for a period of twelve months following the termination of his/her employment with the Company, he/she shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.not:
(a) Participant agrees that Participant shall notContact, while an employee call on, provide advice to, solicit, take away, or divert, and/or influence or attempt to influence any customers, clients, and/or patrons of the Company and during the twelve Company;
(12b) month period following termination of employment (such collective durationSolicit or induce, the “Restriction Period”), either directly or indirectly, without the prior written consent of the Company:
(i) (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship employ of the Company with or take any Person who or which is employed by or otherwise engaged action to perform services for, assist any subsequent employer or any customerother entity, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, either directly or indirectly, in Competitive Activitiessoliciting or inducing any other Company employee to leave the employ of the Company; or hire or employ, so long as Participant does not actively participate or assist in the business of such Person; providedhire or employment of, howevereither directly or indirectly, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound any individual employed by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof).Company within sixty days preceding that individual’s hire by the Grantee or his/her subsequent employer; and/or
(c) Without limiting Become employed by, render services to or directly or indirectly (whether for compensation or otherwise) own or hold a proprietary interest in, manage, operate, or control, or join or participate in the generality of Section 7ownership, notwithstanding the fact that management, operation or control of, or furnish any provision capital to or be connected in any manner with, any Competing Enterprise. For purposes of this Section 1 is determined not subsection (c), a “Competing Enterprise” means any entity, organization or person engaged, or planning to become engaged, in substantially the same or similar business to that being conducted or actively and specifically planned to be specifically enforceable, conducted during the Grantee’s employment with the Company may nevertheless be entitled to recover monetary damages as a result or within six months after the Grantee’s termination of Participant’s material breach of such provision.
(d) Participant acknowledges that employment with the Company has a legitimate business interest and right in protecting or its Confidential Information subsidiaries, owned or controlled. It includes, without limitation: (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to i) the business of developing, managing, operating, marketing, processing, financing, or otherwise being involved in providing any products or services relating to transaction or payment processing, including those for the Companybenefit of fleets; travel; healthcare; education; payroll; or, Participant’s experience and capabilities are such that Participant has benefits through charge cards, credit cards, procurement cards or any other opportunities to earn a livelihood and adequate means form of support for Participant and Participant’s dependents.payment services or electronic commerce; (ii) the sale, ActiveUS 123197312v.1 S:\WEX Inc\SEC FILINGS\2014\Form 10-Q\Q1\WEX.DRAFT.2014 Growth Grant PRSU Agreement.4.2.2014.b.docx
Appears in 1 contract
Samples: Performance Based Restricted Stock Unit Agreement (WEX Inc.)
Non-Competition and Non-Solicitation. For purposes In consideration of the Company’s entering into this ExhibitAgreement, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant Executive agrees that Participant shall not, while an employee of the Company and during the Employment Term and for a period of twelve (12) month period following months after the termination of employment (such collective duration, the “Restriction Period”), directly or indirectlyEmployment Term, without regard to its termination for any reason which does not constitute a breach of this Agreement by the Company or a resignation for Good Reason by Executive, Executive shall not, unless acting pursuant hereto or with the prior written consent of the Company:Board: #56956674 v6
(ia) (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activitiesown, so long as Participant does not actively manage, operate, finance, join, control or participate in the business of such Personownership, management, operation, financing or control of, or be connected as an officer, director, employee, partner, principal, agent, representative, consultant or otherwise with, or use or permit Executive’s name to be used in connection with any Competing Business (defined below) within any state in which the Company, and/or its affiliates, currently engage in any Substantial Business Activity (defined below) or any state in which the Company, and/or its affiliates, engaged in any Substantial Business Activity during the thirty-six month period preceding the date Executive’s employment terminates; provided, however, that notwithstanding the foregoing, this provision shall not be construed to prohibit the passive ownership by Executive of not more than five percent (5%) of the capital stock of any corporation which is engaged in any Competing Business having a class of securities registered pursuant to the Exchange Act; or
(b) solicit or divert to any Competing Business any individual or entity which is an active or prospective customer of the Company, and/or its affiliates, or was such stock is listed on a national securities exchange an active or prospective customer at any time during the preceding twelve (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof).12) months; or
(c) Without limiting the generality of Section 7employ, notwithstanding the fact that attempt to employ, solicit or assist any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provision.
(d) Participant acknowledges that the Company has a legitimate business interest and right Competing Business in protecting its Confidential Information (as defined below), business strategies, employing any employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependentsand/or its affiliates, whether as an employee or consultant.
Appears in 1 contract
Samples: Employment Agreement (Independence Realty Trust, Inc.)
Non-Competition and Non-Solicitation. For purposes of this ExhibitDuring the Term, references subject to the exceptions herein, Retiring Employee covenants and agrees with the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant agrees that Participant Retiring Employee shall not, while an employee of the Company and during the twelve (12) month period following termination of employment (such collective duration, the “Restriction Period”), directly or indirectly, without the prior written consent individually, through an Affiliate or otherwise (including as an officer, employee or consultant, but specifically excluding service on any board of the Company:
directors or comparable bodies, whether for profit or not-for-profit) own an interest or engage in, participate with or provide any financial or other support, assistance or advice to any Competing Business; provided, however, that Retiring Employee may (i) when taken together with the ownership, directly or indirectly, of all of his Affiliates, own, solely as an investment, up to 5% of any class of securities of any Person if such securities are listed on any national securities exchange or traded on the Nasdaq Stock Market so long as Retiring Employee is not an officer, employee of, or analogously employed or engaged by (Aother than as a director (or comparable position)), such Person or any of such Person’s Affiliates or (ii) engage in activities own securities issued by the Company. In addition, Retiring Employee agrees that during the Term he shall not, directly or businesses indirectly: (including without limitation by owning 1) endeavor to entice away from the Company or any interest inof its Affiliates any individual or entity who was or is a material customer, managingmaterial supplier or material business relation or otherwise interfere with the relationship between the Company or its Affiliate and such material customer, controllingsupplier or business relation, participating in, consulting (2) establish (or take preliminary steps to establish) a business with, advisingor cause or attempt to cause others to establish (or take preliminary steps to establish) a business with, rendering services for, any employee or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses agent of the Company or any of its subsidiaries Affiliates, if such business competes with or controlled affiliates will compete with the Company or any entity owned by the Company (“Competitive Activities”) of its Affiliates, or (B3) assisting any Person in any way to doemploy, engage as a consultant or adviser, or attempt to dosolicit employment, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform engagement as a consultant or adviser, of any action, activity employee or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees agent of the Company or Persons who have worked any of its Affiliates, or cause or attempt to cause any individual or entity to do any of the foregoing. Retiring Employee agrees that the restrictions contained in this Section 2 are necessary to protect Company’s goodwill and confidential information the Company has provided to Retiring Employee. Notwithstanding the foregoing, the parties expressly acknowledge and agree that nothing herein shall prohibit Retiring Employee from serving on the boards of directors (or comparable bodies), or committees thereof, of any entity (including an entity that constitutes a Competing Business) so long as Retiring Employee’s duties on the board (or comparable body) of any Competing Business are consistent with those customary of a board member in the industry. B-2 3. Specific Performance; Injunctive Relief. Retiring Employee specifically acknowledges and agrees that the Company, in providing the Retirement Payments, has relied on the agreements and covenants of Retiring Employee contained in this Agreement and that the terms of this Agreement are reasonable and necessary for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment protection of the Company; (C) intentionally interfering with . Retiring Employee specifically acknowledges and agrees that any breach or threatened breach by Retiring Employee of his or her agreements and covenants contained herein would cause the relationship Company irreparable harm not compensable solely in damages. Retiring Employee further acknowledges and agrees that it is essential to the effective enforcement of this Agreement that Company be entitled to the remedies of specific performance, injunctive relief and similar remedies and Retiring Employee agrees to the granting of any such remedies upon a breach or threatened breach by Retiring Employee of any of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) aboveterms hereof. The Restriction Period Company also shall be tolled during entitled to pursue any other remedies (and shall be deemed automatically extended byat law or in equity) available to it for any period in which Participant is in violation breach or threatened breach of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof)the recovery of money damages. 4.
(c) Without limiting the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provision.
(d) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.
Appears in 1 contract
Samples: Retirement Agreement
Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant agrees that Participant shall not, while an employee of to comply fully with any written agreement between the Company and during the twelve (12) month period following Participant which provides for post-termination of employment restrictions against solicitation or competition (such collective duration, the “Restriction PeriodRestrictive Covenant Agreement”), directly or indirectly, without the prior written consent of the Company:
(i) (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in the business of such Person; provided, however, that if no such stock is Restrictive Covenant Agreement exists, the Participant shall not for a period of [six (6), twelve (12), eighteen (18)] months after Participant’s voluntary termination of employment with Company or involuntary termination of employment by Company [for “Cause”], either himself or together with other persons, directly or indirectly: (i) own, manage, operate, finance, join, control or participate in the ownership, management, operation, financing, or control of or be connected as an officer, director, employee, partner, principal, agent, representative, consultant or otherwise with, or have any financial interest in, or aid or assist anyone else in the conduct of, or use or permit Participant’s name to be used in connection with, any business engaged in the research, development, manufacture, sale, marketing or distribution of stainless steel, titanium, specialty alloys, metal powders or metal fabricated parts or components similar to or competitive with those manufactured by the Company (a “Competing Business”) as of the date the Participant’s employment with Company ends; provided, however, that nothing herein shall prevent the Participant from investing in the securities of any company listed on a national securities exchange exchange, provided that Participant’s involvement with any such company is solely that of a stockholder of 5% or less of any class of the outstanding securities thereof; (for the sake ii) solicit or divert to any Competing Business any individual or entity that is a customer or prospective customer of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof).
(c) Without limiting the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled or its subsidiaries or affiliates, or was such a customer or prospective customer at any time during the eighteen (18) months prior to recover monetary damages as a result the date of Participant’s material breach employment termination with the Company; (iii) induce, offer, assist, encourage or suggest (A) that another business or enterprise offer employment to or enter into a business affiliation with any Company employee, agent or representative, or any individual who acted as an employee, agent or representative of such provision.
the Company in the previous six (d6) Participant acknowledges months; or (B) that any Company employee, agent or representative (or individual who acted as an employee, agent or representative of the Company in the previous six (6) months) terminate his or her employment or business affiliation with the Company; or (iv) hire or participate in the hiring of any Company employee or any person who was an employee of the Company in the previous six (6) months, by any business, enterprise or employer. For this purpose, “prospective customer” shall mean a person or business entity that the Company has identified as a legitimate business interest user or potential user of the Company’s products and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and toward which the Company plans to direct sales or marketing activities. In the event that the Company would determines in good faith that the Participant violated the terms of any Restrictive Covenant Agreement, or, if there is no Restrictive Covenant Agreement, the provisions of the preceding paragraph: (i) this Award shall be seriously damaged by forfeited and (ii) the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (shall be obligated to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar return to the business Company any shares previously issued under this Award or a cash payment equal to the value of the Companyshares at the time such shares were sold or transferred, Participant’s experience and capabilities are if any or all of the Award has been issued to the Participant or such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependentsrecoupment is required by law.
Appears in 1 contract
Samples: Restricted Stock Unit Award Agreement (Carpenter Technology Corp)
Non-Competition and Non-Solicitation. For purposes 10.1 In consideration of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attachedUnits and related Dividend Equivalents, provided that section references herein shall refer to sections in this Exhibit.the Participant agrees and covenants not to:
(a) Participant agrees that Participant shall not, while an employee of the Company and during the twelve (12) month period following termination of employment (such collective duration, the “Restriction Period”)contribute his or her knowledge, directly or indirectly, without the prior written consent of the Company:
(i) (A) engage in activities whole or businesses (including without limitation by owning any interest inin part, managingas an employee, controllingofficer, participating inowner, consulting withmanager, advisingadvisor, rendering services forconsultant, agent, partner, director, shareholder, volunteer, intern or in any manner engaging other similar capacity to an entity engaged in the same or similar business of owning, operating or managing as the Company and its Subsidiaries in any business) anywhere in the United States or other countries outside the United States geographic area in which the Participant worked, represented the Company does businessor its Subsidiaries, that are principally or primarily engaged in had material contact with customers of the Company or its Subsidiaries during the Participant’s employment with the Company or any business of its Subsidiaries, for a period of nine (9) months following the Participant's Termination of Service;
(b) directly or activity that competes indirectly, solicit, hire, recruit, attempt to hire or recruit, or induce the termination of employment of any employee of the Company or its Subsidiaries for nine (9) months following the Participant's Termination of Service; or
(c) directly or indirectly, solicit, contact (including, but not limited to, e-mail, regular mail, express mail, telephone, fax, and instant message), attempt to contact or meet with any of the businesses current or actively sought prospective customers of the Company or any of its subsidiaries or controlled affiliates Subsidiaries with whom the Participant had material contact during the Participant’s employment with the Company or any entity owned of its Subsidiaries, for purposes of offering or providing goods or services similar to or competitive with those offered by the Company (“Competitive Activities”) or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, of its Subsidiaries for a period of nine (9) months following the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation Participant's Termination of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof).
(c) Without limiting the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provisionService.
(d) The restrictions in this Section 10 are in addition to, and not in lieu of, any other similar obligations the Participant acknowledges may have under any other agreement with the Company or its affiliates.
10.2 If the Participant breaches any of the covenants set forth in Section 10.1 of this Agreement:
(a) all unvested Restricted Stock Units and related Dividend Equivalents shall be immediately forfeited; and
(b) the Participant hereby consents and agrees that the Company has shall be entitled to seek, in addition to other available remedies, a legitimate business interest and right in protecting its Confidential Information (as defined below)temporary or permanent injunction or other equitable relief against such breach or threatened breach from any court of competent jurisdiction, business strategies, employee and customer relationships and goodwillwithout the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and that without the Company would necessity of posting any bond or other security. The aforementioned equitable relief shall be seriously damaged by the disclosure in addition to, not in lieu of, legal remedies, monetary damages or other available forms of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.relief.]3
Appears in 1 contract
Samples: Restricted Stock Unit Agreement (Americold Realty Trust)
Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to The Grantee agrees that during his/her employment with the Company and for a period of twelve months following the termination of his/her employment with the Company, he/she shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.not:
(a) Participant agrees that Participant shall notContact, while an employee call on, provide advice to, solicit, take away, or divert, and/or influence or attempt to influence any customers, clients, and/or patrons of the Company and during the twelve Company;
(12b) month period following termination of employment (such collective durationSolicit or induce, the “Restriction Period”), either directly or indirectly, without the prior written consent of the Company:
(i) (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship employ of the Company with or take any Person who or which is employed by or otherwise engaged action to perform services for, assist any subsequent employer or any customerother entity, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, either directly or indirectly, in Competitive Activitiessoliciting or inducing any other Company employee to leave the employ of the Company; or hire or employ, or assist in the hire or employment of, either directly or indirectly, any individual employed by the Company within sixty days preceding that individual’s hire by the Grantee or his/her subsequent employer; and/or
(c) Become employed by, render services to or directly or indirectly (whether for compensation or otherwise) own or hold a proprietary interest in, manage, operate, or control, or join or participate in the ownership, management, operation or control of, or furnish any capital to or be connected in any manner with, any Competing Enterprise. For purposes of this subsection (c), a “Competing Enterprise” means any entity, organization or person engaged, or planning to become engaged, in substantially the same or similar business to that being conducted or actively and specifically planned to be conducted during the Grantee’s employment with the Company or within six months after the Grantee’s termination of employment with the Company or its subsidiaries, owned or controlled. It includes, without limitation: (i) the business of developing, managing, operating, marketing, processing, financing, or otherwise being involved in providing any products or services relating to transaction or payment processing, including those for the benefit of fleets; travel; healthcare; education; payroll; or, benefits through charge cards, credit cards, procurement cards or any other form of payment services or electronic commerce; (ii) the sale, distribution or publication of petroleum product pricing or management information or other products or services currently sold or to the best of his/her knowledge contemplated to be sold by the Company or any of its owned or controlled subsidiaries, and (iii) the business of developing, managing, operating, marketing, processing, financing, or otherwise being involved in providing commercial travel, entertainment and purchasing credit cards. The restrictions in this paragraph shall not be construed to prevent the Grantee from, following the termination of his/her employment with the Company, working for a business entity that does not compete with the Company or its subsidiaries simply because the entity is affiliated with a Competing Enterprise, so long as Participant does not actively participate in the business of such Person; provided, however, entity is operationally separate and distinct from the Competing Enterprise and the Grantee’s job responsibilities at that such stock is listed on a national securities exchange (for entity are unrelated to the sake of clarity, Participant shall remain bound by the other restrictive covenants Competing Enterprise. The restrictions in this Agreement, including but paragraph will not limited apply to Section 2 hereof).
(c) Without limiting employment by or the generality rendering of Section 7, notwithstanding the fact services to businesses that any provision of this Section 1 is determined sell fuel or convenience items if those businesses are not to be specifically enforceable, directly competing with the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provision.
(d) Participant or its subsidiaries, owned or controlled. The Grantee acknowledges that the Company has a legitimate business interest Company’s and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges subsidiaries’ businesses are conducted internationally and agrees that each and every restraint imposed by the provisions in this Agreement is reasonable with respect to subject matter, time period and geographical areaparagraph shall operate wherever the Company conducts business. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.ActiveUS 123197312v.1 S:\WEX Inc\SEC FILINGS\2014\Form 10-Q\Q1\WEX.DRAFT.PRSU Agreement.4.2.2014.b.docx
Appears in 1 contract
Samples: Performance Based Restricted Stock Unit Agreement (WEX Inc.)
Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to Executive acknowledges and recognizes the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant agrees that Participant shall not, while an employee of the Company and during the twelve (12) month period following termination of employment (such collective duration, the “Restriction Period”), directly or indirectly, without the prior written consent of the Company:
(i) (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any highly competitive nature of the businesses of the Company or any of its subsidiaries or controlled affiliates or any entity owned and accordingly agrees that while Executive is employed by the Company and after such employment until (“Competitive Activities”i) if Executive’s termination of employment does not occur within 12 months after a Change in Control (as defined in Exhibit B to this Agreement) 12 months; or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) if Executive’s termination of employment occurs within 12 months after a Change in Control (as defined in Exhibit B to this Agreement) 18 months, and provided that all payments due to Executive are made as required in this Agreement:
(a) Executive will not perform any action, activity services for or course own an interest in (except for investments of conduct which is substantially detrimental to the businesses or business reputations not more than five percent (5%) of the total outstanding shares or other equity interests of a company or entity in which Executive does not actively participate in management) any firm, person or other entity that competes or plans to compete in any geographic area with the Company and involves in the business of the development, manufacture, promotion, distribution or sale of digital film, video or audio production tools, including, but not limited to, editing, mixing, broadcast products, content-creation tools, media storage, computer graphics or live-sound, or other business or services that the Company is engaged in or plans (Aas evidenced by consideration by the Company’s executive staff or by the Board) solicitingto engage at the time Executive’s employment with the Company terminates.
(b) Executive will not directly or indirectly assist others in engaging in any of the activities in which Executive is prohibited to engage by Section 12.1(a).
(c) Executive will not directly or indirectly either alone or in association with others (x) solicit, recruiting or hiring (or attempting permit any organization controlled by Executive to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment employ of the Company; , or (Cy) intentionally interfering with the relationship of solicit for employment, hire or engage as an independent contractor, or permit any organization controlled by Executive to solicit for employment, hire or engage as an independent contractor, any natural person who is then employed by the Company with at any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by time. This Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a12.1(c) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent apply (3%i) to the solicitation, hiring or engagement of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof).
(c) Without limiting the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceable, individual whose employment with the Company may nevertheless be entitled has been terminated or whose engagement to recover monetary damages the Company as an independent contractor has been terminated and (ii) to the solicitation, hiring or engagement of any individual arising from such individual’s affirmative response to a result of Participant’s material breach of such provisiongeneral recruitment effort carried out through a public solicitation or a general solicitation.
(d) Participant acknowledges that Executive will not directly or indirectly either alone or in association with others solicit, or permit any organization directly or indirectly controlled by Executive to solicit, any current or future customer or supplier of the Company has a legitimate to cease doing business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that whole or in part with the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of otherwise adversely modify his, her or its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance relationship with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.
Appears in 1 contract
Non-Competition and Non-Solicitation. For purposes of this ExhibitIn order to protect the Company’s proprietary information and good will, references to during the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant agrees that Participant shall not, while an employee of Executive’s employment with the Company and during the for a period of twelve (12) month period months following termination the Date of employment Termination (such collective duration, the “Restriction Restricted Period”), the Executive will not directly or indirectly, whether as owner, partner, shareholder, director, manager, consultant, agent, employee, co-venturer or otherwise, engage, participate or invest in any Competing Business. For purposes hereof, the term “Competing Business” shall mean any entity engaged in the discovery, development or commercialization of CAS9 technology for human therapeutics. Notwithstanding the foregoing, nothing contained hereinabove or hereinbelow shall be deemed to prohibit the Executive from (i) acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding 2% of such corporation’s (or other entity’s) then outstanding shares of capital stock (or equity interest), or (ii) working for a line of business, division or unit of a larger entity that competes with the Company as long as the Executive’s activities for such line of business, division or unit do not involve work by the Executive on matters that are directly competitive with the Company’s business. In addition, during the Restricted Period, the Executive will not, directly or indirectly, without in any manner, other than for the prior written consent benefit of the Company:
Company (i) (A) engage in activities divert or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses take away customers of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) abovesuppliers; or
and/or (ii) perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit entice, attempt to persuade any other employee or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee consultant of the Company to leave the Company for any reason (other than the termination of subordinate employees undertaken in the course of my employment with the Company). The Executive acknowledges and agrees that if the Executive violates any of the Company; (C) intentionally interfering with the relationship provisions of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(ii)(A8(e), (Bi) or the running of the Restricted Period will be extended by the time during which the Executive engages in such violation(s), but in no event for a period exceeding three (C3) above. The Restriction years following the end of the Employment Period shall be tolled during and (and shall be deemed automatically extended byii) any period in which Participant is in the Executive must provide compensation for the damage incurred by the Company, if any, resulting from the violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof8(e).
(c) Without limiting the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provision.
(d) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.
Appears in 1 contract
Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant Xxxxxxxxx agrees that Participant until the expiration of the Employment Period, regardless of whether the Date of Termination occurs prior thereto, Xxxxxxxxx shall not, while an employee of the Company and during the twelve (12) month period following termination of employment (such collective duration, the “Restriction Period”), directly or indirectly, without the prior written consent of the Company:
, (ix) Participate In (Aas defined below) engage in activities any entity or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging organization in the business of owningproviding broadband communications services (which term shall include, operating without limitation, any one or managing any businessmore of video programming and/or distribution, interactive television, telephone and Internet access services) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes competition with any of the businesses of the Company or any of its subsidiaries in the respective geographic areas ("Territory") where the Company or controlled affiliates a subsidiary of the Company conducted such businesses at the Date of Termination ("Restricted Business"), or (y) directly or indirectly solicit or interfere with, or endeavor to entice away from the Company or a subsidiary of the Company any entity owned of their respective suppliers, customers or employees. The employment by Xxxxxxxxx or a business that Xxxxxxxxx Participates In of a person employed or formerly employed by the Company (“Competitive Activities”) or (B) assisting any Person in any way to do, or attempt to do, anything shall not be prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any actionthe foregoing provision if such person sought out employment on his own initiative without initial encouragement, activity direct or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) solicitingindirect, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided belowXxxxxxxxx.
(b) The provisions of Section 1(a) term "Participate In" shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engagedmean to, directly or indirectly, in Competitive Activitiesfor his own benefit or for, so long as Participant does not actively with or through any other person, entity or corporation, own, manage, operate, or participate in the business ownership, management, operation or control of, or be connected as a director, officer, employee, partner, member, consultant, advisor, agent, independent contractor, creditor, guarantor, financial backer, stockholder, investor or otherwise with, or acquiesce in the use of such Person; providedhis name in. Notwithstanding the foregoing, howeverXxxxxxxxx shall not be deemed to Participate In a Restricted Business merely because Xxxxxxxxx (i) owns not more than 10% of the outstanding equity of an entity, that such stock which equity is listed or traded on a national securities exchange or association, or (for the sake of clarity, Participant shall remain bound ii) is employed by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof).
(c) Without limiting the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages or acts as a result consultant, advisor or independent contractor to a business unit of Participant’s material breach an entity or organization that is not related, directly or indirectly, to the Restricted Business of such provisionentity or organization.
(d) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.
Appears in 1 contract
Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant agrees that Participant For a period of three (3) years from and after the Closing Date (the “Restricted Period”), Owner and Company shall not, while an employee and shall not permit any of the Company and during the twelve (12) month period following termination of employment (such collective duration, the “Restriction Period”)their Affiliates to, directly or indirectly, without the prior written consent of the Company:
(i) (A) engage in activities or businesses assist others (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or other than Newco) in any manner engaging in the business of owning, operating or managing any business) anywhere Restricted Business in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) aboveTerritory; or
(ii) perform have an interest in any actionPerson that engages directly or indirectly in the Restricted Business in the Territory in any capacity, activity including as a partner, shareholder, member, employee, principal, agent, director, officer, trustee or course consultant (except as a passive investment of conduct which is substantially detrimental to less than two percent (2%) of the businesses outstanding equity securities of any Person listed on any national securities exchange or business reputations traded actively in any national over-the-counter market so long as such Party has no other relationship with such Person in violation of this Agreement); or (iii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former client or customer of Owner or the Company and involves (A) soliciting, recruiting any Person that becomes a client or hiring (or attempting to solicit, recruit or hire) any employees customer of the Company or Persons who have worked for Business after the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services forClosing), or any customerother Person who has a material business relationship with the Business, client, supplier, licensee, licensor to terminate or other business relation of, the Company; modify any such actual or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided belowprospective relationship.
(b) The provisions of Section 1(a) During the Restricted Period, Owner and the Company shall not, and shall not be deemed breached as a result permit any of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engagedtheir Affiliates to, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate hire or solicit any Person who is offered employment or engaged to provide consulting services by Newco pursuant to this Agreement or is or was employed in the business of Business during the Restricted Period, or encourage any such Person; providedemployee or consultant to leave such employment or consulting position or hire any such employee or consultant who has left such employment or consulting position, however, that except pursuant to a general solicitation which is not directed specifically to any such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof)employees.
(c) Without limiting Owner and the generality of Section 7, notwithstanding the fact Company acknowledge that any provision a breach or threatened breach of this Section 1 is determined 5.6 would give rise to irreparable harm to Forward and Newco, for which monetary damages would not be an adequate remedy, and hereby agree that in the event of a breach or a threatened breach by Owner or Company of any such obligations, Forward and/or Newco shall, in addition to any and all other rights and remedies that may be specifically enforceableavailable to each in respect of such breach, the Company may nevertheless be entitled to recover monetary damages as equitable relief, including a result temporary restraining Order, an injunction, specific performance and any other relief that may be available from a court of Participant’s material breach of such provisioncompetent jurisdiction (without any requirement to post bond).
(d) Participant acknowledges Owner and the Company acknowledge that the Company has restrictions contained in this Section 5.6 are reasonable and necessary to protect the legitimate interests of Forward and Newco and constitute a legitimate business interest material inducement to Forward and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant Newco to enter into this Agreement and consummate the transactions contemplated by this Agreement. Participant In the event that any covenant contained in this Section 5.6 should ever be adjudicated to exceed the time, geographic, product or service or other limitations permitted by applicable Law, then any court is expressly acknowledges empowered to reform such covenant, and agrees that each and every restraint imposed such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service or other limitations permitted by this Agreement is reasonable with respect to subject matter, time period and geographical areaapplicable Law. Participant further acknowledges that although Participant’s compliance with the The covenants contained in Sections 1this Section 5.6 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, 2, 3, 4 and 5 may prevent Participant from earning a livelihood any such invalidity or unenforceability in a business similar to the business of the Company, Participant’s experience and capabilities are any jurisdiction shall not invalidate or render unenforceable such that Participant has covenant or provision in any other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependentsjurisdiction.
Appears in 1 contract
Samples: Asset Purchase Agreement (Forward Industries, Inc.)
Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to (a) During Executive’s employment with the Company and within one year after Executive’s termination of employment with the Company for any reason, whether or not payments are being made under this Agreement, Executive shall include its subsidiaries and Affiliates and references to not, directly or indirectly, (x) anywhere in the Agreement shall refer to world render any material services for any organization, or engage in any business, that competes in any material respect with the Restricted Stock Unit Agreement to business of the Company for which this Exhibit is attachedExecutive has performed material services in any material respect during the two years preceding the Termination Date (a “Competing Business”), provided or (y) solicit or contact, for the purpose or with the effect of competing or interfering with the business of the Company for which Executive has performed material services in any material respect during the two years preceding the Termination Date (i) any customer or acquisition target under contract with the Company at any time during the last two years of Executive’s employment with the Company, (ii) any prospective customer or acquisition target that section references herein shall refer to sections in this Exhibitreceived or requested a proposal, offer or letter of intent from the Company at any time during the last two years of Executive’s employment with the Company, (iii) any affiliate of any such customer or prospect, or (iv) any of the individual contacts at customers or acquisition targets established by the Company, Executive or others at the Company during the period of Executive’s employment with the Company.
(ab) Participant agrees that Participant During Executive’s employment with the Company and for a period of one year after Executive’s termination of employment with the Company for any reason, whether or not payments are being made under this Agreement, Executive shall notnot directly or indirectly hire, while or encourage or solicit any employee, consultant or independent contractor to leave the employment or service of the Company for any reason or interfere in any other manner with such relationships at the time existing between the Company and its employees, consultants and independent contractors. As part of this restriction, Executive is prohibited from interviewing or providing any input to any third party regarding any such employee, consultant or independent contractor of the Company. However, this obligation shall not affect any responsibility Executive may have as an employee of the Company with respect to the bona fide hiring and during firing of Company personnel.
(c) Notwithstanding the twelve (12) month period following termination foregoing, nothing herein shall prohibit Executive from commencing employment with a subsidiary, division or unit of employment (any entity that engages in a Competing Business so long as Executive and such collective durationsubsidiary, the “Restriction Period”)division or unit do not, directly or indirectly, without the prior written consent of engage in a Competing Business, as determined by the Company:
(i) (A) engage ’s Chief Executive Officer in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services forgood faith on a timely basis after Executive has notified the Company in writing of his commencing, or in any manner engaging in the business of owningintention to commence, operating employment with such subsidiary, division or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided belowunit.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof).
(c) Without limiting the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provision.
(d) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.
Appears in 1 contract
Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant agrees The Company and Executive acknowledge that Participant shall notthe services to be performed by Executive under this Agreement are unique and extraordinary and, while an employee as a result of such employment, Executive will be in possession of confidential information and trade secrets (collectively, “Confidential Material”) relating to the business practices of the Company and during the twelve (12) month period following termination of employment (such collective duration, the “Restriction Period”)its Affiliates. Executive agrees that he will not, directly or indirectly, (i) disclose to any other person or entity either during or after his employment by the Company or (ii) use, except during his employment by the Company in the business and for the benefit of the Company or any of its Affiliates, any Confidential Material acquired by Executive during his employment by the Company, without the prior written consent of the Company or otherwise than as required by law or any rule or regulation of any federal or state authority. Upon termination of his employment with the Company for any reason, Executive agrees to return to the Company all tangible manifestations of Confidential Materials and all copies thereof, not to disparage the Company:
, and for a period of one year from the date of such termination not to solicit, or assist any person other than Employer to solicit for employment or hire any employee of the Company. All programs, ideas, strategies, approaches, practices or inventions created, developed, obtained or conceived of by Executive during the term hereof by reason of his engagement by the Company, shall be owned by and belong exclusively to the Company, provided that they are related in any manner to the Company’s business or that of any of its Affiliates. Executive shall (i) promptly disclose all such programs, ideas, strategies, approaches, practices, inventions or business opportunities to the Company, and (Aii) execute and deliver to the Company, without additional compensation, such instruments as the Company may require from time to time to evidence its ownership of any such items.
(b) Executive agrees that during the term of employment he will not become a stockholder, director, officer, employee or agent of or consultant to any corporation, or member of or consultant to any partnership or other entity, or engage in activities any business as a sole proprietor or businesses (including without limitation by owning act as a consultant to any interest in, managing, controlling, participating in, consulting with, advising, rendering services forsuch entity, or otherwise engage, directly or indirectly, in any manner engaging enterprise, in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in each case which the Company does business, that are principally or primarily engaged in competes with any business or activity that competes with any of the businesses of engaged in, or known by Executive to be contemplated to be engaged in, by the Company or any of its subsidiaries Affiliates or controlled affiliates in which Executive has knowledge that the Company or any entity of its Affiliates contemplates doing business; provided, however, that competition shall not include the ownership (solely as an investor and without any other participation in or contact with the management of the business) of less than five percent (5%) of the outstanding shares of stock of any corporation engaged in any such business, which shares are regularly traded on a national securities exchange or in an over-the-counter market.
(c) Executive agrees that for a period of one (1) year from date of his separation from employment for any reason, other than in connection with a Change in Control of the company or Executive’s resignation of his employment for Good Reason, he will not accept employment as an executive with any racetrack or casino within one hundred (100) miles of any racetrack or casino then owned or operated by the Company or its affiliates.
(“Competitive Activities”d) or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by Executive has carefully read and considered the provisions of this Section 1(a)(i)(A7, and, having done so, agrees that (i) above; or
the restrictions set forth herein are reasonable, in terms of scope, duration, geographic scope and otherwise, (ii) perform any actionthe protection afforded to Employer hereunder is necessary to protect its legitimate business interests and is no greater than necessary to protect Employer’s legitimate business interests, activity or course of conduct which is substantially detrimental (iii) the agreement to the businesses or business reputations observe such restrictions forms a material part of the Company consideration for this Agreement, and involves (Aiv) solicitingupon the termination of Executive’s employment with Employer for any reason, recruiting or hiring (or attempting he will be able to solicitearn a livelihood without violating the foregoing restrictions. In the event that, recruit or hire) notwithstanding the foregoing, any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) The 7 shall be held to be invalid or unenforceable, the remaining provisions of Section 1(a) thereof shall nevertheless continue to be valid and enforceable as though the invalid or unenforceable parts had not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in been included therein. In the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof).
(c) Without limiting the generality of Section 7, notwithstanding the fact event that any provision of this Section 1 is determined not 7 relating to the time period and/or the areas of restriction and/or related aspects shall be specifically declared by a court of competent jurisdiction to exceed the maximum restrictiveness such court deems reasonable and enforceable, the Company may nevertheless time period and/or areas of restriction and/or related aspects deemed reasonable and enforceable by the court shall become and thereafter be the maximum restriction in such regard, and the restriction shall remain enforceable to the fullest extent deemed reasonable by such court.
(e) Executive agrees that Employer’s remedies at law for any breach or threat of breach by his of any of the provisions of this Section 7 will be inadequate and that Employer shall be entitled to recover monetary damages as a result an injunction or injunctions to prevent breaches of Participant’s material breach the provisions of such provision.
(d) Participant acknowledges that this Section 7 and to enforce specifically the Company has a legitimate business interest terms and right provisions thereof, in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (addition to any other remedy to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 Employer may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependentsbe entitled at law or equity.
Appears in 1 contract
Non-Competition and Non-Solicitation. For purposes of this ExhibitDuring the Term, references subject to the exceptions herein, Retiring Employee covenants and agrees with the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant agrees that Participant Retiring Employee shall not, while an employee of the Company and during the twelve (12) month period following termination of employment (such collective duration, the “Restriction Period”), directly or indirectly, without the prior written consent individually, through an Affiliate or otherwise (including as an officer, employee or consultant, but specifically excluding service on any board of the Company:
directors or comparable bodies, whether for profit or not-for-profit) own an interest or engage in, participate with or provide any financial or other support, assistance or advice to any Competing Business; provided, however, that Retiring Employee may (i) when taken together with the ownership, directly or indirectly, of all of his Affiliates, own, solely as an investment, up to 5% of any class of securities of any Person if such securities are listed on any national securities exchange or traded on the Nasdaq Stock Market so long as Retiring Employee is not an officer, employee of, or analogously employed or engaged by (Aother than as a director (or comparable position)), such Person or any of such Person’s Affiliates or (ii) engage in activities own securities issued by the Company. In addition, Retiring Employee agrees that during the Term he shall not, directly or businesses indirectly: (including without limitation by owning 1) endeavor to entice away from the Company or any interest inof its Affiliates any individual or entity who was or is a material customer, managingmaterial supplier or material business relation or otherwise interfere with the relationship between the Company or its Affiliate and such material customer, controllingsupplier or business relation, participating in, consulting (2) establish (or take preliminary steps to establish) a business with, advisingor cause or attempt to cause others to establish (or take preliminary steps to establish) a business with, rendering services for, any employee or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses contractor of the Company or any of its subsidiaries Affiliates, if such business competes with or controlled affiliates will compete with the Company or any entity owned by the Company (“Competitive Activities”) of its Affiliates, or (B3) assisting any Person in any way to doemploy, engage as a consultant, or attempt to dosolicit employment, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform engagement as a consultant, of any action, activity employee or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees contractor of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services forits Affiliates, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, cause or attempt to docause any individual or entity to do any of the foregoing. Retiring Employee agrees that the restrictions contained in this Section 2 are necessary to protect Company’s goodwill and confidential information the Company has provided to Retiring Employee. Notwithstanding the foregoing, anything prohibited by Section 1(a)(ii)(Athe parties expressly acknowledge and agree that nothing herein shall prohibit Retiring Employee from serving on the boards of directors (or comparable bodies), or committees thereof, of any entity (Bincluding an entity that constitutes a Competing Business) so long as Retiring Employee’s duties on the board (or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%comparable body) of any class of securities Competing Business are consistent with those customary of a Person engaged, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate board member in the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof)industry.
(c) Without limiting the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provision.
(d) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.
Appears in 1 contract
Samples: Retirement Agreement (Newfield Exploration Co /De/)
Non-Competition and Non-Solicitation. For purposes a period of this Exhibit, references to 4 years after the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant agrees that Participant shall not, while an employee of the Company and during the twelve (12) month period following termination of employment (such collective durationClosing Date, the “Restriction Period”Sellers will not (and will cause their Related Parties not to), directly or indirectly, whether for their own account or for the account of any other Person, whether for or without compensation, acting alone or as a member of a partnership, as a shareholder of a company, as a holder or owner of any security, as an employee, director, agent, advisor, consultant to, independent contractor to, representative, or in any other capacity:
(a) carry on, or be engaged in, or otherwise take part in, the prior written consent Relevant Business anywhere in the Territory; or
(b) invest in, own, manage, operate, finance, control, advise, render services to or guarantee the obligations of any Person engaged in or planning to become engaged in the Relevant Business anywhere in the Territory; or
(c) solicit the business of any Person who is a customer of the CompanyPurchaser or the VRV Group; or
(d) cause, induce or attempt to cause or induce any customer, supplier, licensee, licensor, franchisee, employee, consultant or other business relation of the Purchaser to cease doing business with the Purchaser, to deal with any competitor of the Purchaser or in any way interfere with its relationship with the Purchaser; or
(e) cause, induce or attempt to cause or induce any customer, supplier, licensee, licensor, franchisee, employee, consultant or other business relation of the VRV Group on the Closing Date or within the year preceding the Closing Date to cease doing business with the VRV Group, to deal with any competitor of the VRV Group or in any way interfere with its relationship with the VRV Group; or
(f) hire, retain or attempt to hire or retain any employee or independent contractor of the Purchaser Group or the VRV Group or in any way interfere with the relationship between the Purchaser Group or the VRV Group and any of their employees or independent contractors. For the avoidance of doubt, nothing in this Section 14.1 shall prevent the Sellers from:
(i) (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily being engaged in any business position within any industry association (associazioni di categoria) (accordingly, any position accepted or activity that competes with maintained by any of the businesses Sellers in any such associations shall not constitute a breach of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; orabove undertakings);
(ii) perform investing in publicly-traded companies, provided that the stake so acquired by the Sellers in any action, activity or course such company does not exceed 2.5% of conduct which is substantially detrimental to the businesses or business reputations its share capital;
(iii) carrying out any of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees activities provided for under this agreement in respect of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee holding of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person equity in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engagedand/or managing, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in the business of such PersonSpinoff Entity (but solely to complete the activities specifically contemplated by this agreement); provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof).or
(civ) Without limiting the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages hiring independent professionals such as a result of Participant’s material breach of such provision.
lawyers and/or accountants (dcommercialisti) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss who work or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance have worked with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependentsVRV Group.
Appears in 1 contract
Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant agrees that Participant shall notDuring the Employment Term, while an employee of the Company and during the twelve (12) month period following termination of employment (such collective duration, the “Restriction Period”), directly Executive will not do or indirectly, without the prior written consent of the Company:
say anything that: (i) (A) engage in activities could advance an interest of any existing or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses prospective competitor of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person Affiliates in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) aboveway; or
(ii) perform any action, activity that will or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees may injure an interest of the Company or Persons who have worked for the Company during the twelve any of its Affiliates in its relationship and dealings with existing or potential suppliers or customers; or (12iii) month period immediately preceding such solicitation, recruitment solicits or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) encourages any other employee of the Company or any of its Affiliates to leave do or say something that is disloyal to the employment Company or any of the Company; (C) intentionally interfering its Affiliates, is inconsistent with the relationship interest of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor of its Affiliate’s interests or other business relation of, the Company; or (D) assisting violates any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions provision of this Section 1(a) unless provided belowAgreement.
(b) The provisions During Executive’s employment under this Agreement and for two (2) years following the termination of Section 1(aExecutive’s employment (whether under this Agreement or during a successor or “at will” employment period):
(i) Executive shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engagednot, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in on Executive’s own behalf or on behalf of any person or entity other than the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this AgreementCompany, including but not limited to Section 2 hereof).
(c) Without limiting the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages without limitation as a result proprietor, principal, agent, partner, officer, director, stockholder, employee, member of Participant’s material breach of such provision.
(d) Participant acknowledges any association, consultant or otherwise, engage in any business that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided directly competitive with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participantincluding without limitation any business that operates one or more full-service, casual dining steakhouse restaurants within the United States or any foreign country in which the Company or its franchisees or its joint venture partners is operating or in which Executive knows the Company or its franchisees or its joint venture partners proposes to open within twenty-four (24) months. The provisions of this Section shall also apply to any business which is directly competitive with any other business which the Company or an Affiliate acquires or develops during Executive’s experience employment with the Company.
(ii) Except as required in the performance of Executive’s duties as an employee of the Company, Executive shall not, directly or indirectly, (A) hire, engage or solicit or induce or attempt to induce to cease working for the Company, any person who is then an employee of the Company or who was an employee of the Company during the six (6) month period immediately preceding Executive’s termination of employment with the Company, nor (B) solicit, request, advise, induce or attempt to induce any vendor, supplier or other business contact of the Company to cancel, curtail, cease doing business with, or otherwise adversely change its relationship with the Company. TXRH Executive Employment Agreement – MONROE
(c) For the purposes of this Agreement, the phrase “proposes to open” a restaurant includes all locations for which active, bona fide negotiations to secure a fee or leasehold interest with the intention of establishing a restaurant are being conducted. Mere ownership, whether through direct or indirect stock holdings or otherwise, of 1% or less of a business shall not constitute a violation of the restriction in Section 11(b)(i) above, unless a greater amount is approved in writing by the Board and the Chairman of Texas Roadhouse, Inc. Executive is deemed to engage in a business if Executive expects to acquire a proprietary interest in a business or to be made an employee, officer, director, manager, consultant, independent contractor, advisor or otherwise of such business at any time after such possibility has been discussed with any officer, director, employee, agent, or promoter of such business.
(d) Executive agrees that Executive’s experience, capabilities and circumstances are such that Participant has other opportunities to earn these provisions will not prevent Executive from earning a livelihood livelihood. Executive further agrees that the limitations set forth in this Section (including, without limitation, any time or territorial limitations) are reasonable and properly required for the adequate means protection of support for Participant the businesses of the Company and Participant’s dependentsits Affiliates. The covenants made by Executive in this Section (and in Sections 8, 9, 10 and 17) will survive the expiration or termination of this Agreement.
Appears in 1 contract
Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant agrees You acknowledge and agree that Participant shall notyour services are of a special and unique nature; that the Company will be introducing you to important actual and potential Company clients, while an employee customers, investors, service providers, vendors, suppliers, business partners, and other relationships; and that the Company will be entrusting you with the goodwill of the Company and the Company’s Confidential Information. As a precondition to, and in consideration of, the foregoing, which you agree are invaluable to you, you have voluntarily agreed to the covenants set forth in this Section 10. You further agree and acknowledge that the limitations and restrictions set forth herein are reasonable in all respects; are not oppressive; are material and substantial parts of this Agreement; and are intended and necessary to prevent unfair competition and protect the Company’s Confidential Information, goodwill, and substantial and legitimate business interests.
(b) You agree that during the period set forth in Section 10(c) below, you will not, without the prior written approval of the Board, directly or indirectly, for yourself or on behalf of or in conjunction with any other person or entity (other than the Company):
(i) engage in or participate in any aspect of the Business, including but not limited to by directly or indirectly owning, managing, operating, joining, becoming an employee or consultant of, or otherwise being associated or affiliated with, any person or entity engaged in, or planning to engage in, any aspect of the Business within the Market Area;
(ii) solicit, canvass, approach, entice, induce, or cause any actual or potential customer, vendor, consultant, supplier, or service provider of the Company, or any member thereof, to (A) cease, reduce, or lessen such person’s or entity’s business or relationship with the Company; (B) refrain from doing any business with the Company; or (C) deal with the Company on less favorable terms or conditions;
(iii) solicit, canvass, approach, or do business with any person or entity that was a customer, vendor, consultant, supplier, or service provider of the Company, within the twelve (12) month period following termination of employment (prior to such collective durationsolicitation, the “Restriction Period”)canvassing, directly approach, or indirectly, without the prior written consent of the Company:other business relationship;
(iiv) (A) engage in activities or businesses (including without limitation by owning any interest insolicit, managingcanvass, controllingapproach, participating inentice, consulting with, advising, rendering services forinduce, or in cause any manner engaging in the business of owningemployee, operating consultant, contractor, or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses service provider of the Company to terminate his, her or any of its subsidiaries employment or controlled affiliates or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) aboveengagement therewith; or
(iiv) perform solicit, canvass, approach, hire, retain, or do business with any actionindividual who was an employee, activity consultant, contractor, or course of conduct which is substantially detrimental to the businesses or business reputations service provider of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during within the twelve (12) month period immediately preceding prior to such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services forcanvassing, or any customerapproach, clienthiring, supplierretention, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof)relationship.
(c) Without limiting You agree that the generality covenants in Section 10(b) will be enforceable during the Employment Term and for a period of Section 7twenty-four (24) months following the termination thereof, notwithstanding regardless of whether you resign or are terminated or the fact reason for such resignation or termination. You further agree that any provision upon your violation of this Section 1 is determined not to be specifically enforceable10, the Company may nevertheless be entitled Company’s obligation to recover monetary damages as a result of Participant’s material breach of such provisionpay any Consulting Fee or make any Severance Payments shall immediately cease.
(d) Participant acknowledges that For purposes of this Section 10, the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that following terms shall have the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.following meanings:
Appears in 1 contract
Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant The Stockholder hereby agrees that Participant shall during the period commencing on the date hereof and ending on the date which is the later of five (5) years after the date hereof, it will not, while an employee without the express written consent of the Company and during the twelve (12) month period following termination of employment (such collective duration, the “Restriction Period”)Company, directly or indirectly, without the prior written consent of the Company:
(i) (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which any foreign country where the Company does has conducted business, that are principally is conducting business or primarily engaged is presently contemplating conducting business, (a) engage in any business activity which is or activity that competes (b) participate or invest in, provide or facilitate the provision of financing to, or assist (whether as owner, part-owner, shareholder, member, partner, director, officer, trustee, employee, agent or consultant, or in any other capacity) any business, organization or person other than the Company (or any subsidiary of the Company), including any such business, organization or person involving, or which is, a family member of the Stockholder, whose business, activities, products or services are competitive with any of the businesses business, activities, products or services conducted or offered by the Company or any of its subsidiaries, which business, activities, products and services shall include in any event and without limitation the Company Business. Without implied limitation, the forgoing covenant shall be deemed to prohibit (a) hiring or engaging or attempting to hire or engage for or on behalf of the Stockholder or any such competitor any officer or employee of the Company or any of its subsidiaries, or any former employee of the Company and any of its subsidiaries who was employed during the six (6) month period immediately preceding the date hereof, (b) encouraging for or on behalf of the Stockholder or any such competitor any such officer or employee to terminate its relationship or employment with the Company or any of its subsidiaries, (c) soliciting for or on behalf of the Stockholder or any such competitor any client of the Company or any of its subsidiaries or controlled affiliates or and (d) diverting to any entity owned by the Company (“Competitive Activities”) or (B) assisting person any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any action, activity or course of conduct which is substantially detrimental to the businesses client or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees opportunity of the Company or Persons who have worked for any of any of its subsidiaries. Notwithstanding anything herein to the contrary, the Stockholder may make passive investments in any publicly traded enterprise if such investment constitutes less than one percent (2%) of the equity of such enterprise. Neither the Stockholder nor any business entity controlled by the Stockholder is a party to any contract, commitment, arrangement or agreement which could, following the date hereof, restrain or restrict the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee subsidiary of the Company to leave from carrying on its business or restrain or restrict the Stockholder from performing the Stockholder's employment obligations, and, as of the Company; (C) intentionally interfering with date of this Agreement, the relationship of Stockholder has no business interests whatsoever in or relating to the industries in which the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or and its subsidiaries currently engage other business relation of, than the Company; or (D) assisting any Person Stockholder's interest in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (the Company and shall be deemed automatically extended by) any period other than interests in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership public companies of less than an aggregate of three one percent (32%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof).
(c) Without limiting the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provision.
(d) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.
Appears in 1 contract
Samples: Non Competition Agreement (Eagle Test Systems, Inc.)
Non-Competition and Non-Solicitation. For purposes 10.1 In consideration of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attachedUnits and related Dividend Equivalents, provided that section references herein shall refer to sections in this Exhibit.the Participant agrees and covenants not to:
(a) Participant agrees that Participant shall not, while an employee of the Company and during the twelve (12) month period following termination of employment (such collective duration, the “Restriction Period”)contribute his or her knowledge, directly or indirectly, without the prior written consent of the Company:
(i) (A) engage in activities whole or businesses (including without limitation by owning any interest inin part, managingas an employee, controllingofficer, participating inowner, consulting withmanager, advisingadvisor, rendering services forconsultant, agent, partner, director, shareholder, volunteer, intern or in any manner engaging other similar capacity to an entity engaged in the same or similar business of owning, operating or managing as the Company and its Subsidiaries in any business) anywhere in the United States or other countries outside the United States geographic area in which the Participant worked, represented the Company does businessor its Subsidiaries, that are principally or primarily engaged in had material contact with customers of the Company or its Subsidiaries during the Participant’s employment with the Company or any business of its Subsidiaries, for a period of nine (9) months following the Participant's Termination of Service;
(b) directly or activity that competes indirectly, solicit, hire, recruit, attempt to hire or recruit, or induce the termination of employment of any employee of the Company or its Subsidiaries for nine (9) months following the Participant's Termination of Service; or
(c) directly or indirectly, solicit, contact (including, but not limited to, e-mail, regular mail, express mail, telephone, fax, and instant message), attempt to contact or meet with any of the businesses current or actively sought prospective customers of the Company or any of its subsidiaries or controlled affiliates Subsidiaries with whom the Participant had material contact during the Participant’s employment with the Company or any entity owned of its Subsidiaries, for purposes of offering or providing goods or services similar to or competitive with those offered by the Company (“Competitive Activities”) or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, of its Subsidiaries for a period of nine (9) months following the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation Participant's Termination of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof).
(c) Without limiting the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provisionService.
(d) The restrictions in this Section 10 are in addition to, and not in lieu of, any other similar obligations the Participant acknowledges may have under any other agreement with the Company or its affiliates.
10.2 If the Participant breaches any of the covenants set forth in Section 10.1 of this Agreement:
(a) all unvested Restricted Stock Units and related Dividend Equivalents shall be immediately forfeited; and
(b) the Participant hereby consents and agrees that the Company has shall be entitled to seek, in addition to other available remedies, a legitimate business interest and right in protecting its Confidential Information (as defined below)temporary or permanent injunction or other equitable relief against such breach or threatened breach from any court of competent jurisdiction, business strategies, employee and customer relationships and goodwillwithout the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and that without the Company would necessity of posting any bond or other security. The aforementioned equitable relief shall be seriously damaged by the disclosure in addition to, not in lieu of, legal remedies, monetary damages or other available forms of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependentsrelief.]
Appears in 1 contract
Samples: Restricted Stock Unit Agreement (Americold Realty Trust)
Non-Competition and Non-Solicitation. For purposes In exchange for the consideration contemplated under the Contribution and Merger Agreement and the consummation of this Exhibit, references to the Company shall include its subsidiaries other transactions contemplated by the Contribution and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.Merger Agreement:
(a) Participant agrees that Participant During the Restricted Period, the Restricted Party shall not, while an employee of the Company and during the twelve (12) month period following termination of employment (such collective duration, the “Restriction Period”), directly or indirectly, without the prior written consent of the Company:
(i) (A) own, manage, engage in activities or businesses (including without limitation by owning any interest in, managingoperate, controllingcontrol, participating inwork for, consulting consult with, advising, rendering render services for, do business with, maintain any interest in (proprietary, financial or in any manner engaging otherwise) or participate in the business of owningownership, operating management, operation or managing control of, any business) anywhere , whether in corporate, proprietorship or partnership form or otherwise, engage in the United States or Restricted Business, other countries outside than on behalf of the United States in which the Company does businessAlliqua Entities; provided, that are principally the restrictions contained in this Section 5(a) shall not restrict the acquisition by the Restricted Party, directly or primarily indirectly, of less than 5% of the outstanding capital stock of any publicly traded company engaged in any business or activity that competes with any of the businesses of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided belowa Restricted Business.
(b) The provisions of Section 1(a) During the Restricted Period, the Restricted Party shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engagednot, directly or indirectly, in Competitive Activitiessolicit, so long as Participant does not actively participate in induce, recruit or encourage anyone who is a consultant or employee of the business Company or the Alliqua Entities to terminate his or her employment or consulting relationship with the Company or the Alliqua Entities, or without the consent of the Alliqua Entities, hire, retain or engage any such Person; provided, however, that such stock is listed on a national securities exchange (person for the sake Restricted Party or for another Person or entity. Notwithstanding anything herein to the contrary, nothing in this Section 5(b) shall prevent the Restricted Party or any of clarityits Affiliates from hiring, Participant shall remain bound soliciting, inducing, recruiting or encouraging (i) any employee or consultant whose employment or consultancy has been terminated by the other restrictive covenants in this AgreementCompany or the Alliqua Entities; or (ii) twelve (12) months after the date of termination of employment, including but not limited to Section 2 hereof)any employee or consultant whose employment has been terminated by the employee or the consultant.
(c) Without limiting During the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceableRestricted Period, the Restricted Party shall not, directly or indirectly: (i) solicit business from, interfere with, attempt to solicit business from, interfere with, or do business with any actual or prospective customer or client with whom the Company may nevertheless be entitled or the Alliqua Entities does or has done business (including direct purchasers of the Company’s TheraSkin® product), in any case for the purpose of discussing or securing business or contracts related to recover monetary damages as a result the Restricted Business, or (ii) attempt to influence, encourage, persuade or induce any such actual or prospective customer or client whom the Company or the Alliqua Entities does or has done business to reduce the extent of Participantits business dealings with the Alliqua Entities (including direct purchasers of the Company’s material breach of such provisionTheraSkin® product).
(d) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwillThe Restricted Party shall not, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss shall cause any Affiliates not to, disparage or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of initiate negative publicity about the Company, Participant’s experience the Alliqua Entities, or any of their respective employees, agents, business, policies, products, or services.
(e) If the Restricted Party violates any of the restrictions contained in this Article 5, the Restricted Period shall be suspended and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means shall not run in favor of support for Participant and Participant’s dependentsthe Restricted Party from the time of commencement of any violation until the time when the Restricted Party ceases the violation.
Appears in 1 contract
Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant agrees that Participant shall not, while an employee In consideration of the Company and Consulting Fee, you agree that during the twelve (12) month period following termination of employment (such collective durationConsulting Period, the “Restriction Period”), directly or indirectlyyou will not, without the prior written consent of the Company:
(i) (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, and whether as principal or investor or as an employee, officer, director, manager, partner, consultant, agent or otherwise, alone or in Competitive Activitiesassociation with any other person, so long as Participant does not actively participate firm, corporation or other business organization, provide any labor, work, services or assistance to a business (other than an affiliate of Atlas Holdings LLC) competitive with the Company Group, including a business engaged in or exploring the business of cryptocurrency mining or electrical power generation, in the United States and any other geographic area in which the Company Group has engaged in business, or is reasonably expected to engage in business during such PersonConsulting Period (including, without limitation, any area in which any customer of the Company Group may be located); provided, however, that nothing herein limits your right to own not more than 1% of any of the debt or equity securities of any business organization.
(b) In consideration of the Consulting Fee, you agree that, during the Consulting Period, you will not, directly or indirectly: (a) solicit or induce, or attempt to solicit or induce, or assist any third party to solicit or induce, directly or indirectly, any employee of the Company Group to leave the employ of the Company Group; (b) hire any current or former employee of the Company Group or assist in the hiring of any such stock is listed on a national securities exchange employee by any person, association or entity not affiliated with the Company Group; or (c) induce, solicit or encourage any customer or potential customer of the Company Group to cease doing business with the Company Group (or decrease the amount of business it does with the Company Group) or do business with you (unless for the sake benefit of claritya member of the Company Group) or any business competitive with the Company Group. For purposes of this Letter, Participant shall remain bound by a “potential customer or client” is any person or entity with whom any member of the other restrictive covenants Company Group is, at the Separation Date, or was, during the one-year period immediately preceding the Separation Date, engaged in this Agreement, including but discussions regarding one or more possible transactions with the Company Group. You will not limited be prohibited from advertising to Section 2 hereofthe general public any employment opportunities or requests for consultancy services (which advertisements are not targeted at employees or independent contractors of the Company Group).
(c) Without limiting You agree that you and the generality Company have attempted to limit your right to solicit and compete as applicable only to the extent permitted by applicable law and necessary to protect the legitimate business interests of Section 7, notwithstanding the fact Company. If a court of competent jurisdiction determines that any provision the duration and geographic scope of restrictions in this Section 1 is determined not 8 are too long in duration or too broad in scope to be specifically reasonable and enforceable, the Company may nevertheless court will reduce the duration or geographic scope only so much as is necessary for the restrictions to be entitled to recover monetary damages as a result of Participant’s material breach of such provisionenforceable.
(d) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.
Appears in 1 contract
Samples: Separation Agreement (Greenidge Generation Holdings Inc.)
Non-Competition and Non-Solicitation. For purposes In consideration of this Exhibitthe Employee’s employment hereunder and the benefits derived by the Employee as a result of the Transaction, references Employee agrees to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.following:
(a) Participant Employee hereby agrees that Participant shall not, while an employee during the period commencing on the date hereof and ending on the date that is one year following the date of the Company and during the twelve (12) month period following termination of Employee’s employment with the Company for any reason regardless of the circumstances thereof (such collective duration, the “Restriction Noncompetition Period”), Employee will not, without the express written consent of the Company, directly or indirectly, without the prior written consent of the Company:
(i) (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in any foreign country in which the Company does has conducted business, that are principally is conducting business or primarily engaged is presently contemplating conducting business, engage in any business activity which is, or activity that competes participate or invest in, or provide or facilitate the provision of financing to, or assist (whether as owner, part-owner, shareholder, member, partner, director, officer, trustee, executive, agent or consultant, or in any other capacity), any business, organization or person other than the Company (or any subsidiary or affiliate of the Company), including any such business, organization or person involving, or which is, a family member of Employee, whose business, activities, products or services are competitive with any of the businesses business, activities, products or services conducted or offered or proposed to be conducted or offered by the Company or its subsidiaries during any period in which Employee is employed by the Company or any of its subsidiaries. Without implied limitation, the foregoing covenant shall be deemed to prohibit (other than through a general solicitation not targeted at the Company or its Subsidiaries) (a) hiring or engaging or attempting to hire or engage for or on behalf of Employee or any such competitor any employee of the Company or any of its direct and/or indirect subsidiaries or controlled affiliates and affiliates, or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations former employee of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons its direct and/or indirect subsidiaries and affiliates who have worked for the Company was employed during the twelve six (126) month period immediately preceding the date of such solicitationattempt to hire or engage, recruitment (b) encouraging for or hiring on behalf of Employee or attempt thereof; any such competitor any such employee to terminate his or her relationship or employment with the Company or any of its direct or indirect subsidiaries and affiliates, (Bc) recruiting or soliciting for or encouraging (on behalf of Employee or attempting to solicit or encourage) any employee such competitor any customer of the Company to leave the employment or any of the Company; (C) intentionally interfering with the relationship its direct or indirect subsidiaries and affiliates, or any former customer of the Company with or any Person of its direct or indirect subsidiaries and affiliates who was a customer during the six (6) month period immediately preceding the date of such solicitation and (d) diverting to any person (as hereinafter defined) any customer or business opportunity of the Company or any of any of its direct or indirect subsidiaries and affiliates. Notwithstanding anything herein to the contrary, Employee may make passive investments in any enterprise the shares of which is employed by or otherwise engaged to perform services forare publicly traded if such investment constitutes less than five percent (5%) of the equity of such enterprise. Employee agrees that if a court of competent jurisdiction determines that any restriction, or any customerportion thereof, client, supplier, licensee, licensor or other business relation ofset forth in this Section 7 is overly restrictive and unenforceable, the Company; court may reduce or (D) assisting any Person in any way modify such restrictions to dothose which it deems reasonable and enforceable under the circumstances, and as so reduced or attempt to domodified, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions parties hereto agree that the restrictions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant 7 shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof).
(c) Without limiting the generality full force and effect. Employee further agrees that if a court of Section 7, notwithstanding the fact competent jurisdiction determines that any provision of this Section 1 7 is determined unenforceable, the remaining provisions of this Section 7 and the remainder of this Agreement shall not be affected thereby, and shall remain in full force and effect. Employee acknowledges that the restrictions contained in this paragraph in view of the nature of the Company’s business, are reasonable and necessary to protect the Company’s legitimate business interests and that any violation of this paragraph could result in irreparable injury to the Company, and that monetary damages may not be specifically enforceablesufficient to compensate the Company for any economic loss which may be incurred by reason of breach of the foregoing restrictive covenants. In the event of a breach or a threatened breach by Employee of any provision in this paragraph, the Company may nevertheless shall be entitled to seek a temporary restraining order and injunctive relief restraining Employee from the commission of any breach, and to recover monetary damages the Company’s attorneys’ fees, costs and expenses related to the breach or threatened breach. Nothing contained in this paragraph shall be construed as prohibiting the Company from pursuing any other remedies available to it for any breach or threatened breach, including, without limitation, the recovery of money damages, attorneys’ fees and costs. The restrictions in this paragraph shall each be construed as independent of any other provisions in this Agreement, and the existence of any claim or cause of action by Employee against the Company, whether predicated on this Agreement or otherwise, shall not constitute a result defense to the enforcement of Participantthis Agreement. If Employee violates any of the restrictions contained in this Section, the restrictive period will be suspended and will not run in favor of Employee from the time of the commencement of any violation until the time when Employee cures the violation to the Company’s material breach of such provisionreasonable satisfaction.
(db) Participant acknowledges that During and after Employee’s employment, Employee shall cooperate fully with the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the defense or prosecution of any claims or actions now in existence or which may be brought in the future against or on behalf of the Company would be seriously damaged that relate to events or occurrences that transpired while Employee was employed by the disclosure Company. Employee’s full cooperation in connection with such claims or actions shall include, but not be limited to, being available to meet with counsel to prepare for discovery or trial and to act as a witness on behalf of Confidential Information the Company at mutually convenient times. During and after the loss Employment, Employee also shall cooperate fully with the Company in connection with any investigation or deterioration review of its business strategiesany federal, employee state or local regulatory authority as any such investigation or review relates to events or occurrences that transpired while Employee was employed by the Company. The Company shall reimburse Employee for any reasonable fees and customer relationships and goodwill. Participant acknowledges that Participant is being provided reasonable out-of-pocket expenses incurred in connection with significant additional consideration (Employee’s performance of obligations pursuant to which Participant is not otherwise entitled), including restricted stock unitsthis Section 7(b) and, to induce Participant the extent the performance of Employee’s obligations hereunder occurs after the termination of Employee’s employment, the Company shall pay Employee at a per diem rate equal to enter into this Agreement. Participant expressly acknowledges Employee’s base salary and quarterly bonus in effect at the time of the termination of Employee’s employment..
(c) Employee agrees, while he is employed by the Company, to offer or otherwise make known or available to it, as directed by the Board of the Company and without additional compensation or consideration, any business prospects, contracts or other business opportunities that Employee may discover, find, develop or otherwise have available to Employee in the Company’s general industry and further agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matterany such prospects, time period and geographical area. Participant further acknowledges that although Participant’s compliance with contacts or other business opportunities shall be the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business property of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.
Appears in 1 contract
Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant agrees that Participant shall notDuring the Employment Term, while an employee of the Company and during the twelve (12) month period following termination of employment (such collective duration, the “Restriction Period”), directly Executive will not do or indirectly, without the prior written consent of the Company:
say anything that: (i) (A) engage in activities could advance an interest of any existing or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses prospective competitor of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person Affiliates in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) aboveway; or
(ii) perform any action, activity that will or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees may injure an interest of the Company or Persons who have worked for the Company during the twelve any of its Affiliates in its relationship and dealings with existing or potential suppliers or customers; or (12iii) month period immediately preceding such solicitation, recruitment solicits or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) encourages any other employee of the Company or any of its Affiliates to leave do or say something that is disloyal to the employment Company or any of the Company; (C) intentionally interfering its Affiliates, is inconsistent with the relationship interest of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor of its Affiliate’s interests or other business relation of, the Company; or (D) assisting violates any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions provision of this Section 1(a) unless provided belowAgreement.
(b) The provisions During Executive’s employment under this Agreement and for two (2) years following the termination of Section 1(aExecutive’s employment (whether under this Agreement or during a successor or “at will” employment period):
(i) Executive shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engagednot, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in on Executive’s own behalf or on behalf of any person or entity other than the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this AgreementCompany, including but not limited to Section 2 hereof).
(c) Without limiting the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages without limitation as a result proprietor, principal, agent, partner, officer, director, stockholder, employee, member of Participant’s material breach of such provision.
(d) Participant acknowledges any association, consultant or otherwise, engage in any business that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided directly competitive with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participantincluding without limitation any business that operates one or more full-service, casual dining steakhouse restaurants within the United States or any foreign country in which the Company or its franchisees or its joint venture partners is operating or in which Executive knows the Company or its franchisees or its joint venture partners proposes to open within twenty-four (24) months. The provisions of this Section shall also apply to any business which is directly competitive with any other business which the Company or an Affiliate acquires or develops during Executive’s experience employment with the Company.
(ii) Except as required in the performance of Executive’s duties as an employee of the Company, Executive shall not, directly or indirectly, (A) hire, engage or solicit or induce or attempt to induce to cease working for the Company, any person who is then an employee of the Company or who was an employee of the Company during the six (6) month period immediately preceding Executive’s termination of employment with the Company, nor (B) solicit, request, advise, induce or attempt TXRH Executive Employment Agreement – XXXXXX to induce any vendor, supplier or other business contact of the Company to cancel, curtail, cease doing business with, or otherwise adversely change its relationship with the Company.
(c) For the purposes of this Agreement, the phrase “proposes to open” a restaurant includes all locations for which active, bona fide negotiations to secure a fee or leasehold interest with the intention of establishing a restaurant are being conducted. Mere ownership, whether through direct or indirect stock holdings or otherwise, of 1% or less of a business shall not constitute a violation of the restriction in Section 11(b)(i) above, unless a greater amount is approved in writing by the Board and the Chairman of Texas Roadhouse, Inc. Executive is deemed to engage in a business if Executive expects to acquire a proprietary interest in a business or to be made an employee, officer, director, manager, consultant, independent contractor, advisor or otherwise of such business at any time after such possibility has been discussed with any officer, director, employee, agent, or promoter of such business.
(d) Executive agrees that Executive’s experience, capabilities and circumstances are such that Participant has other opportunities to earn these provisions will not prevent Executive from earning a livelihood livelihood. Executive further agrees that the limitations set forth in this Section (including, without limitation, any time or territorial limitations) are reasonable and properly required for the adequate means protection of support for Participant the businesses of the Company and Participant’s dependentsits Affiliates. The covenants made by Executive in this Section (and in Sections 8, 9, 10 and 17) will survive the expiration or termination of this Agreement.
Appears in 1 contract
Non-Competition and Non-Solicitation. For purposes In consideration of this Exhibitthe Chairman’s employment hereunder and the benefits derived by the Chairman as a result of the transactions contemplated by the Merger Agreement, references the Chairman agrees to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.following:
(a) Participant The Chairman hereby agrees that Participant shall not, while an employee during the period commencing on the date hereof and ending on the fifth (5th) anniversary of the Company and during date of the twelve (12) month period following termination of the Chairman’s employment with the Company for any reason regardless of the circumstances thereof (such collective duration, the “Restriction Noncompetition Period”), the Chairman will not, without the express written consent of the Company, directly or indirectly, without the prior written consent of the Company:
(i) (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in any foreign country in which the Company does has conducted business, that are principally is conducting business or primarily engaged is presently contemplating conducting business, engage in any business activity which is, or activity that competes participate or invest in, or provide or facilitate the provision of financing to, or assist (whether as owner, part-owner, shareholder, member, partner, director, officer, trustee, executive, agent or consultant, or in any other capacity), any business, organization or Person other than the Company (or any subsidiary or affiliate of the Company), including any such business, organization or Person involving, or which is, a family member of the Chairman, whose business, activities, products or services are competitive with any of the businesses of business, activities, products or services conducted or offered or proposed to be conducted or offered by the Company or its subsidiaries during any period in which the Chairman is employed by the Company or any of its subsidiaries or controlled affiliates or any entity owned by subsidiaries. Without implied limitation, the foregoing covenant shall be deemed to prohibit (other than through a general solicitation not targeted at the Company or its subsidiaries) (“Competitive Activities”a) hiring or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (engaging or attempting to solicit, recruit hire or hire) any employees engage for or on behalf of the Company Chairman or Persons any such competitor any employee of the Company, Parent or any of their direct and/or indirect subsidiaries, or any former employee of the Company, Parent or any of their direct and/or indirect subsidiaries who have worked for the Company was employed during the twelve six (126) month period immediately preceding the date of such solicitationattempt to hire or engage, recruitment (b) encouraging for or hiring on behalf of the Chairman or attempt thereof; any such competitor any such employee to terminate his or her relationship or employment with the Company, Parent or any of their direct and/or indirect subsidiaries and affiliates, or (Bc) recruiting, soliciting or encouraging (diverting for or attempting to solicit or encourage) any employee on behalf of the Company to leave the employment Chairman or any such competitor any customer of the Company; (C) intentionally interfering with the relationship , Parent or any of the Company with any Person who or which is employed by or otherwise engaged to perform services fortheir direct and/or indirect subsidiaries, or any customerformer customer of the Company, clientParent or any of their direct and/or indirect subsidiaries who was a customer during the six (6) month period immediately preceding the date of such recruitment, suppliersolicitation or diversion for the purpose of providing any business, licenseeactivities, licensor products or other business relation ofservices the same as or substantially similar to the business, activities, products or services provided or offered by the Company. Notwithstanding anything herein to the contrary, the Company; or Chairman may make passive investments (Di) assisting any Person in any way enterprise the shares of which are not publicly traded if such enterprise’s business, activities, products or services are not competitive with any of the business, activities, products or services conducted or offered or proposed to dobe conducted or offered by the Company or its subsidiaries and (ii) in any enterprise the shares of which are publicly traded if such investment constitutes less than five percent (5%) of the equity of such enterprise. The Chairman agrees that if a court of competent jurisdiction determines that any restriction, or attempt portion thereof, set forth in this Section 7 is overly restrictive and unenforceable, the court may reduce or modify such restrictions to dothose which it deems reasonable and enforceable under the circumstances, anything prohibited by Section 1(a)(ii)(A)and as so reduced or modified, (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions parties hereto agree that the restrictions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant 7 shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof).
(c) Without limiting the generality full force and effect. The Chairman further agrees that if a court of Section 7, notwithstanding the fact competent jurisdiction determines that any provision of this Section 1 7 is determined unenforceable, the remaining provisions of this Section 7 and the remainder of this Agreement shall not be affected thereby, and shall remain in full force and effect. The Chairman acknowledges that the restrictions contained in this paragraph in view of the nature of the Company’s business, are reasonable and necessary to protect the Company’s legitimate business interests and that any violation of this paragraph would result in irreparable injury to the Company, and that monetary damages may not be specifically enforceablesufficient to compensate the Company for any economic loss which may be incurred by reason of breach of the foregoing restrictive covenants. In the event of a breach or a threatened breach by the Chairman of any provision in this paragraph, the Company may nevertheless shall be entitled to a temporary restraining order and injunctive relief restraining the Chairman from the commission of any breach, and to recover monetary damages the Company’s attorneys’ fees, costs and expenses related to the breach or threatened breach. Nothing contained in this paragraph shall be construed as prohibiting the Company from pursuing any other remedies available to it for any breach or threatened breach, including, without limitation, the recovery of money damages, attorneys’ fees and costs. The restrictions in this paragraph shall each be construed as independent of any other provisions in this Agreement, and the existence of any claim or cause of action by the Chairman against the Company, whether predicated on this Agreement or otherwise, shall not constitute a result defense to the enforcement of Participantthis Agreement. If the Chairman violates any of the restrictions contained in this Section, the restrictive period will be suspended and will not run in favor of the Chairman from the time of the commencement of any violation until the time when the Chairman cures the violation to the Company’s material breach of such provisionreasonable satisfaction.
(db) Participant acknowledges During and after the Chairman’s employment, the Chairman shall cooperate fully with the Company in the defense or prosecution of any claims or actions now in existence or which may be brought in the future against or on behalf of the Company that relate to events or occurrences that transpired while the Chairman was employed by the Company. The Chairman’s full cooperation in connection with such claims or actions shall include, but not be limited to, being available to meet with counsel to prepare for discovery or trial and to act as a witness on behalf of the Company at mutually convenient times. During and after the Employment, the Chairman also shall cooperate fully with the Company in connection with any investigation or review of any federal, state or local regulatory authority as any such investigation or review relates to events or occurrences that transpired while the Chairman was employed by the Company. Subject to Section 17(d), the Company shall reimburse the Chairman for any reasonable fees and reasonable out-of-pocket expenses incurred in connection with the Chairman’s performance of obligations pursuant to this Section 7(b) and such cooperation shall be at reasonable times and upon reasonable advance notice.
(c) The Chairman agrees, while he is employed by the Company, to offer or otherwise make known or available to it, as directed by the Board of the Company and without additional compensation or consideration, any business prospects, contracts or other business opportunities that the Company has a legitimate business interest Chairman may discover, find, develop or otherwise have available to the Chairman in the Company’s general industry and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and further agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matterany such prospects, time period and geographical area. Participant further acknowledges that although Participant’s compliance with contacts or other business opportunities shall be the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business property of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.
Appears in 1 contract
Samples: Employment Agreement (CommScope Holding Company, Inc.)
Non-Competition and Non-Solicitation. For purposes of this Exhibit, references to The Grantee agrees that during his/her employment with the Company and for a period of twelve months following the termination of his/her employment with the Company, he/she shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.not:
(a) Participant agrees that Participant shall notContact, while an employee call on, provide advice to, solicit, take away, or divert, and/or influence or attempt to influence any customers, clients, and/or patrons of the Company and during the twelve Company;
(12b) month period following termination of employment (such collective durationSolicit or induce, the “Restriction Period”), either directly or indirectly, without the prior written consent of the Company:
(i) (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship employ of the Company with or take any Person who or which is employed by or otherwise engaged action to perform services for, assist any subsequent employer or any customerother entity, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, either directly or indirectly, in Competitive Activitiessoliciting or inducing any other Company employee to leave the employ of the Company; or hire or employ, or assist in the hire or employment of, either directly or indirectly, any individual employed by the Company within sixty days preceding that individual’s hire by the Grantee or his/her subsequent employer; and/or
(c) Become employed by, render services to or directly or indirectly (whether for compensation or otherwise) own or hold a proprietary interest in, manage, operate, or control, or join or participate in the ownership, management, operation or control of, or furnish any capital to or be connected in any manner with, any Competing Enterprise. For purposes of this subsection (c), a “Competing Enterprise” means any entity, organization or person engaged, or planning to become engaged, in substantially the same or similar business to that being conducted or actively and specifically planned to be conducted during the Grantee’s employment with the Company or within six months after the Grantee’s termination of employment with the Company or its subsidiaries, owned or controlled. It includes, without limitation: (i) the business of developing, managing, operating, marketing, processing, financing, or otherwise being involved in providing any products or services relating to transaction or payment processing, including those for the benefit of fleets; travel; healthcare; education; payroll; or, benefits through charge cards, credit cards, procurement cards or any other form of payment services or electronic commerce; (ii) the sale, distribution or publication of petroleum product pricing or management information or other products or services currently sold or to the best of his/her knowledge contemplated to be sold by the Company or any of its owned or controlled subsidiaries, and (iii) the business of developing, managing, operating, marketing, processing, financing, or otherwise being involved in providing commercial travel, entertainment and purchasing credit cards. The restrictions in this Paragraph 5 shall be effective and binding only to the extent permissible under Rule 5.6 of the Maine Rules of Professional Conduct or any similar rule governing the practice of law that is applicable to the Grantee. The restrictions in this Paragraph shall not be construed to prevent the Grantee from, following the termination of his/her employment with the Company, working for a business entity that does not compete with the Company or its subsidiaries simply because the entity is affiliated with a Competing Enterprise, so long as Participant does not actively participate in the business of such Person; provided, however, entity is operationally separate and distinct from the Competing Enterprise and the Grantee’s job responsibilities at that such stock is listed on a national securities exchange (for entity are unrelated to the sake of clarity, Participant shall remain bound by the other restrictive covenants Competing Enterprise. The restrictions in this Agreement, including but paragraph will not limited apply to Section 2 hereof).
(c) Without limiting employment by or the generality rendering of Section 7, notwithstanding the fact services to businesses that any provision of this Section 1 is determined sell fuel or convenience items if those businesses are not to be specifically enforceable, directly competing with the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provision.
(d) Participant or its subsidiaries, owned or controlled. The Grantee acknowledges that the Company has a legitimate business interest Company’s and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges subsidiaries’ businesses are conducted internationally and agrees that each and every restraint imposed by the provisions in this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with paragraph shall operate wherever the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependentsCompany conducts business.
Appears in 1 contract
Samples: Non Statutory Stock Option Award Agreement (WEX Inc.)
Non-Competition and Non-Solicitation. (i) For purposes a period commencing with the date hereof and ending the later of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(ax) Participant agrees that Participant shall not, while an employee of the Company and during the twelve (12) month period following termination months after the Employee is no longer employed by Bankshares Affiliates or (y) the date the Employee is no longer receiving the payment of employment his Base Salary, or percentage thereof, pursuant to Section 10(e) of this Agreement (such collective durationthe "Restricted Period"), the “Restriction Period”)Employee shall not, and shall not permit any person subject to his direction or control to, directly or indirectly, without anywhere within the prior written consent State of Georgia (the Company:
(i) (A) "Territory"), engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owningbanking (the "Business"), operating whether alone or managing in association with others, as principal, officer, agent, employee, director or stockholder of any business) anywhere in the United States bank, bank holding company, corporation, partnership, association or other countries outside the United States entity (except as provided in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“Competitive Activities”9(a)(iv) or (B) assisting any Person in any way to dobelow), or attempt to dothrough the investment of capital, anything prohibited by this Section 1(a)(i)(A) above; orlending of money or property or rendering of services.
(ii) perform During the Restricted Period, the Employee shall not, and shall not permit any actionof his respective affiliates, activity employees, agents or course others under his control who are engaged in the Business to, directly or indirectly, on their own behalf or on behalf of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves any other person, (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) call on any employees customer of Bankshares Affiliates located in the Company or Persons who have worked Territory for the Company during purpose of soliciting the twelve (12) month period immediately preceding banking deposits or loans of such solicitationcustomer of Bankshares Affiliates, recruitment or hiring or attempt thereof; (B) soliciting otherwise divert or encouraging (or attempting attempt to solicit or encourage) divert any employee of business from Bankshares Affiliates within the Company to leave the employment of the Company; Territory, (C) intentionally interfering interfere with the relationship business relationships between Bankshares Affiliates within the Territory, on the one hand, and any of its respective customers or others with whom it has business relationships, on the Company with any Person who or which is employed by or otherwise engaged to perform services forother hand, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person recruit or otherwise solicit or induce, or enter into or participate in any way plan or arrangement, to docause any person who is an employee of, or attempt otherwise performing services for, Bankshares Affiliates to doterminate his or her employment or other relationship with Bankshares Affiliates, anything prohibited by Section 1(a)(ii)(A), (B) or (CE) above. hire any person who has left the employ of Bankshares Affiliates during the preceding twelve months, or hire any person who is or has been an executive officer of Bankshares Affiliates at any time.
(iii) The Restriction Period Employee shall not at any time, directly or indirectly, use, or purport to authorize any person to use, any name, mark, logo, or other identifying words or images which are the same xx, or similar to, those used currently or in the past by Bankshares in connection with any product or service, whether or not such use would be tolled during in a business competitive with that of Bankshares Affiliates.
(and iv) The ownership or control of up to five percent of the outstanding securities of any class of a bank or bank holding company doing business in the Territory, which has a class of securities registered under the Securities Exchange Act of 1934, as amended, shall not be deemed automatically extended by) any period in which Participant is in to be a violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Participant does not actively participate in the business of such Person; provided, however, that such stock is listed on a national securities exchange (for the sake of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof9(a).
(c) Without limiting the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provision.
(d) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.
Appears in 1 contract
Non-Competition and Non-Solicitation. For purposes a) By entering into this Agreement, you acknowledge that the Confidential Information has been and will be developed and acquired by the Company by means of this Exhibitsubstantial expense and effort, references that the Confidential Information is a valuable asset of the Company’s business, that the disclosure of the Confidential Information to any of the Company’s competitors would cause substantial and irreparable injury to the Company shall include its subsidiaries Company’s business, and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) Participant agrees that Participant shall not, while an employee any customers of the Company developed by you or others during your employment are developed on behalf of the Company. You further acknowledge that you have been provided with access to Confidential Information, including Confidential Information concerning the Company’s major customers, and its technical, marketing and business plans, disclosure or misuse of which would irreparably injure the Company.
b) In exchange for the consideration specified in Section 1 of this Agreement — the adequacy of which you expressly acknowledge — you agree that during your employment by the Company and for a period of twelve (12) month period months following termination of employment (such collective durationEmployment Separation, the “Restriction Period”)you shall not, directly or indirectly, without the prior written consent of the Companyas an owner, shareholder, officer, employee, manager, consultant, independent contractor, or otherwise:
(i) (A) engage in activities Attempt to recruit or businesses (including without limitation by owning any interest inhire, managing, controlling, participating in, consulting with, advising, rendering services for, interfere with or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses of the Company or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“Competitive Activities”) or (B) assisting any Person in any way to doharm, or attempt to dointerfere with or harm, anything prohibited by this Section 1(a)(i)(A) above; orthe relationship of the Company, its subsidiaries or affiliates, with any person who is an employee, customer or supplier of the Company, its subsidiaries or affiliates;
(ii) perform Contact any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations employee of the Company and involves (A) soliciting, recruiting for the purpose of discussion or hiring (suggesting that such employee resign form employment with the Company for the purpose of becoming employed elsewhere or attempting to solicit, recruit or hire) any provide information about individual employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment personnel policies or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee procedures of the Company to leave any person Page 4 of 4 Change in Control & Non-competition Agreement | Xxxxx or entity, including any individual, agency or company engaged in the employment business of recruiting employees, executives or officer; or
(iii) Own, manage, operate, join control, be employed by, consult with or participate in the Company; (C) intentionally interfering with the relationship of the Company with any Person who ownership, management, operation or which is employed by or otherwise engaged to perform services forcontrol of, or be connected with (as a stockholder, partner, or otherwise), any customerbusiness, clientindividual, supplierpartner, licenseefirm, licensor corporation, or other business relation of, the Company; entity that competes or (D) assisting any Person in any way plans to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the provisions of this Section 1(a) unless provided below.
(b) The provisions of Section 1(a) shall not be deemed breached as a result of Participant’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engagedcompete, directly or indirectly, in Competitive Activitieswith the Company, so long as Participant does not actively participate in its products, or any division, subsidiary or affiliate of the business of such PersonCompany; provided, however, that your “beneficial ownership,” either individually or as a member of a “group” as such terms are used in Rule 13d of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of not more than two percent (2%) of the voting stock is listed on of any publicly held corporation, shall not be a national securities exchange (for the sake violation of clarity, Participant shall remain bound by the other restrictive covenants in this Agreement, including but not limited to Section 2 hereof).
(c) Without limiting the generality of Section 7, notwithstanding the fact that any provision of this Section 1 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Participant’s material breach of such provision.
(d) Participant acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to the business of the Company, Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of support for Participant and Participant’s dependents.
Appears in 1 contract
Samples: Change in Control & Non Competition Agreement (Commercial Vehicle Group, Inc.)
