Non-Competition, Non-Solicitation and Non-Disparagement. (a) During the Term, the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity without the consent of the Board or (2) participate in the formation of any business or commercial entity without the consent of the Board; provided, however, that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two percent (2%) of such corporation’s (or other entity’s) then-outstanding shares of capital stock (or other interests). (b) If this Agreement is terminated by the Company for Cause (as defined in Section 6(c)) or if the Executive terminates this Agreement other than in accordance with Section 7 or 8 hereof, or if the Executive is receiving Severance Payments in accordance with Section 9(c) or payments under Section 9(d), then for a period of one (1) year following the date of termination the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity in the Company’s Field of Interest (as defined in Section 12), (2) solicit any customers or suppliers of the Company, (3) attempt to persuade or encourage customers or suppliers of the Company not to do business with the Company and/or to do business with a competitor of the Company, (4) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field of Interest, or (5) directly or indirectly employ, or seek to employ or secure the services in any capacity of, any person employed at that time by the Company or any of its Affiliates, or otherwise encourage or entice any such person to leave such employment; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interests). This Section 5(b) shall be subject to written waivers, which may be obtained by the Executive from the Company. (c) At no time during the Term of this Agreement or thereafter will the Executive knowingly make any written or oral untrue statement or any statement that disparages the Company or its Affiliates or will the Company knowingly make any written or oral untrue statement or any statement that disparages the Executive. (d) If the Executive commits a breach, or threatens to commit a breach, of any of the provisions of this Section 5, the Company shall have the right and remedy to have the provisions of this Agreement, as the case may be, specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide an adequate remedy to the Company. (e) If any of the covenants contained in this Section 5 or any part hereof or thereof, is hereafter construed to be invalid, illegal or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoing, the invalidity, illegality or unenforceability of any one or more of the covenants contained in this Section 5 shall not affect the validity of any other provision hereof, which shall be given full effect without regard to the invalid portions. (f) If any of the covenants contained in this Section 5, or any part hereof or thereof, is held to be unenforceable because of the duration of such provision, the area covered thereby or the extent thereof, the parties agree that the tribunal making such determination shall have the power, and hereby is directed, to reduce the duration, area and/or extent of such provision and, in its reduced form, such provision shall then be enforceable. (g) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state within the geographical scope of such other covenants, as to breaches of such covenants in such other jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
Appears in 4 contracts
Samples: Employment Agreement (Sand Hills, Inc), Employment Agreement (Sand Hills, Inc), Employment Agreement (Sand Hills, Inc)
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During the Term, the The Executive shall not not, at any time during the Term or during the 18-month period following the Date of Termination (1) provide any servicesthe “Non-Compete Period”), except as permitted in this Section 5 or with the prior written consent of the Board (having made its determination as set forth below), directly or indirectly, to whether independently or in association with any other business Person (other than the Company), private equity firm, investment company or commercial entity without management company, (i) own any equity or other ownership interest in, be employed by, consult or work as an independent contractor or agent for any Person (other than the consent of the Board Company) engaged in a Business or (2ii) own, manage, operate, finance, control or participate in the formation ownership, management, operation, financing or control of any such business or commercial entity without the consent of the Board; provided, however, that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two percent (2%) of such corporation’s (or other entity’s) then-outstanding shares of capital stock (or other interests).
(b) If this Agreement is terminated by the Company for Cause (as defined in Section 6(c)) or if the Executive terminates this Agreement other than in accordance with Section 7 or 8 hereof, or if the Executive is receiving Severance Payments in accordance with Section 9(c) or payments under Section 9(d), then for a period of one (1) year following the date of termination the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity in the Company’s Field of Interest (as defined in Section 12), (2) solicit any customers or suppliers of the Company, (3) attempt to persuade or encourage customers or suppliers of the Company not to do business with the Company and/or to do business with a competitor of the Company, (4) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field of Interest, or (5) directly or indirectly employ, or seek to employ or secure the services in any capacity of, any person employed at that time by the Company or any of its Affiliates, or otherwise encourage or entice any such person to leave such employment; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interests)enterprise. This Section 5(b) shall be subject to written waivers, which may be obtained by the Executive from the Company.
(c) At no time during the Term of this Agreement or thereafter will the Executive knowingly make any written or oral untrue statement or any statement that disparages the Company or its Affiliates or will the Company knowingly make any written or oral untrue statement or any statement that disparages the Executive.
(d) If the Executive commits a breach, or threatens to commit a breach, of any of the provisions of this Section 5, the Company shall have the right and remedy to have the provisions of this Agreement, as the case may be, specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide an adequate remedy to the Company.
(e) If any of the covenants contained in this Section 5 or any part hereof or thereof, is hereafter construed to be invalid, illegal or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoing, the invalidity, illegality or unenforceability of any one or more of the covenants contained The restrictions set forth in this Section 5 shall not affect be construed to prohibit or restrict any passive investment by the validity Executive in any class of debt or equity securities of any other provision hereof, which shall be given full effect without regard to company engaged in a Business so long as the invalid portions.
Executive in the aggregate together with his Affiliates does not hold at any time during such period more than five percent (f5%) If any of the covenants contained in issued and outstanding voting securities of such company, or five percent (5%) of the aggregate principal amount of such class of debt securities outstanding (each such 5% limit, the “5% Threshold”) and, consistent with the remainder of this Section 5, so long as the Executive and his Affiliates do not otherwise engage in any other activities with respect to such company (whether as a director, officer, employee, agent, representative, consultant or any part hereof or thereof, is held to be unenforceable because of the duration of such provision, the area covered thereby or the extent thereof, the parties agree that the tribunal making such determination shall have the power, and hereby is directed, to reduce the duration, area and/or extent of such provision and, in its reduced form, such provision shall then be enforceable.
(g) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 A upon the courts of any state within the geographical scope of such covenantsotherwise). In the event that the courts of any one Executive requests permission to take a “Competitive Action” (as defined below), the Board shall in good faith consider whether such Competitive Action could reasonably be expected to cause material detriment or more of such states shall hold any such covenant wholly unenforceable by reason harm to the business of the breadth of such scope Company or otherwiseits subsidiaries, it is and shall provide its consent to the intention of Executive to the parties hereto extent the Board so determines that such determination Competitive Action could not bar be so detrimental or in any way affect the Company’s right to the relief provided above in the courts of any other state within the geographical scope of such other covenants, as to breaches of such covenants in such other jurisdictions, the above covenants as they relate to each state being, for harmful. For this purpose, severable into diverse and independent covenants“Competitive Action” is limited to either making a passive investment in a Business in excess of the 5% Threshold or sitting on a board of directors (or similar governing body) of a Business.
Appears in 2 contracts
Samples: Employment Agreement (MultiPlan Corp), Employment Agreement (MultiPlan Corp)
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During the Term, the Executive Employee shall not (1) provide any services, directly or indirectly, to any other business or commercial entity without the consent of the Board Company, which may be withheld in the Company’s sole discretion, or (2) participate in the formation of any business or commercial entity without the consent of the BoardCompany, which may be withheld in the Company’s sole discretion; provided, however, that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive Employee from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two percent (2%) % of such corporation’s (or other entity’s) then-then outstanding shares of capital stock (or other interestsand provided, further, that nothing contained herein shall be deemed to limit the Employee’s Permitted Activities pursuant to Section 1(b).
(b) If this Agreement is terminated Upon a termination of the Employee’s employment by the Company for Cause (as defined in any reason other than pursuant to Section 6(c)6(a) or if the Executive terminates this Agreement other than in accordance with Section 7 or 8 hereof6(b), or if upon a termination of the Executive is receiving Severance Payments in accordance Employee’s employment by the Employee for any reason, following such termination of employment and during the Restricted Period, the Employee shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer, or otherwise, compete with Section 9(c) the Company or payments under Section 9(d)any of its Affiliates, then or undertake any planning for a period any business competitive with the Company or any of one (1) year following its Affiliates. Specifically, but without limiting the date of termination foregoing, during the Executive shall not Restricted Period the Employee will not: (1) provide any services, services directly or indirectly, whether as an employee or independent contractor or otherwise, whether with or without compensation, to any other business or commercial entity in the Company’s Field of Interest (as defined in Section 12), (2) solicit United States that is competitive with all or any customers or suppliers portion of the Company, (3) attempt to persuade or encourage customers or suppliers business of the Company not to do business with the Company and/or to do business with a competitor of the Company, or its Affiliates; (42) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field United States that is competitive with all or any portion of Interestthe business of the Company or its Affiliates, or (53) directly or indirectly employ, or seek to employ or secure the services in any capacity ofemploy, any person employed at that time by the Company or any of its AffiliatesAffiliates anywhere in the world, or otherwise encourage or entice any such person to leave such employment; (4) solicit or encourage any independent contractor providing services to the Company or any of its Affiliates anywhere in the world to terminate or diminish its relationship with the Company or its Affiliates; or (5) solicit or encourage any customer, consultant, or vendor of the Company or its Affiliates anywhere in the world, to terminate or diminish its relationship with the Company or its Affiliates; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive Employee from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) % of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interestsand provided, further, that nothing contained herein shall be deemed to limit Employee’s Permitted Activities pursuant to Section 1(b). This Section 5(b) shall be subject to written waivers, which waivers that may be obtained by the Executive Employee from the Company.
(c) At no time during the Term of this Agreement or thereafter thereafter, regardless of the reason for termination, will the Executive Employee knowingly make any written or oral verbal untrue statement or any statement that disparages the Company, its Affiliates, its business, its management, or its products in communications with any customer, client or the public. The employee will, furthermore, not otherwise do or say anything that could disrupt the good morale of employees of the Company or any of its Affiliates Affiliates, or will that xxxxx the interests or reputation of the Company knowingly make any written or oral untrue statement or any statement that disparages the Executiveof its Affiliates.
(d) Nothing in this Agreement or the Proprietary Information and Inventions Agreement limits, restricts, or in any other way affects the Employee’s communicating with any governmental agency or entity, or communicating with any official or staff person of a governmental agency or entity, concerning matters relevant to the governmental agency or entity.
(e) The Employee acknowledges that he has read and considered all the terms and conditions of this Agreement, including the restraints imposed upon him pursuant to Sections 5(a)-(c) above. The Employee agrees without reservation that these restraints are necessary for the reasonable and proper protection of the Company and its Affiliates, and are reasonable in respect to subject matter, length of time, and geographic area. If the Executive Employee commits a breach, or threatens to commit a breach, of any of the provisions of this Section 5, the Company shall have the right and remedy to have the provisions of this Agreement, as the case may be, Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will may not provide an adequate remedy to the Company.
(e) If . The Employee therefore agrees that the Company, in addition to any other remedies available to it, shall be entitled to preliminary and permanent injunctive relief against any breach or threatened breach by the Employee of any of the provisions of this Section 5, without having to post bond. So that the Company may enjoy the full benefit of the covenants contained in this Section 5 or any part hereof or thereofabove, is hereafter construed to the Employee agrees that the Restricted Period shall be invalid, illegal or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the powertolled, and hereby is directedshall not run, to substitute for or limit such provision(s) in order as closely as possible to effectuate during the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoing, the invalidity, illegality or unenforceability period of any one or more breach by the Employee of the covenants contained in this Section 5 shall not affect the validity of any other provision hereof, which shall be given full effect without regard to the invalid portionssuch covenants.
(f) If any of the covenants contained in this Section 5, or any part hereof thereof, is hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect without regard to the invalid portions.
(g) If any of the covenants contained in this Section 5, or any part thereof, is held to be unenforceable because of the duration or scope of such provision, provision or the area covered thereby or the extent thereofthereby, the parties agree that the tribunal court making such determination shall have the power, and hereby is directed, power to reduce the durationduration and/or area of such provision, and that the parties intend for the court to modify the duration and/or area and/or extent of such provision and, to the maximum extent permitted by law. The parties agree that in its reduced form, such provision shall then be enforceable.
(gh) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state states within the geographical scope of such other covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
Appears in 2 contracts
Samples: Employment Agreement (Alexion Pharmaceuticals Inc), Employment Agreement (Alexion Pharmaceuticals Inc)
Non-Competition, Non-Solicitation and Non-Disparagement. In further consideration of the compensation to be paid to Executive hereunder, during the term of this Agreement and for a period of twelve (a12) During months following the TermTermination Date (the “Non-Compete Period”), the Executive shall not, directly or indirectly through any other Person or contractual arrangement:
(i) Engage, anywhere in North America, in publishing and distribution of publications, operating websites, distributing television programs, operating television channels or networks, operating broadband networks, hosting events and conducting other similar activities relating to hunting, fishing and shooting or any other significant business engaged in by the Company during the Term (the “Business”), or perform management, executive or supervisory functions with respect to, owning, operating, joining, controlling, rendering financial assistance to, receiving any economic benefit from, exerting any influence upon, participating in or rendering services or advice to any business or Person that competes in whole or in part, with the Business; provided that the restrictions contained in this Section 7(a)(i) shall not prohibit Executive from (1A) provide any servicesacquiring, directly or indirectly, to any other business or commercial entity without the consent less than 5% of the Board outstanding capital stock of any publicly traded company that competes with the Business or (2B) participate in working for an employer whose primary business does not compete with the formation of any Business so long as (x) Executive does not work for the subsidiary, business segment or commercial entity without the consent division of the Board; provided, however, employer that nothing contained in this Section 5(acompetes with the Business and (y) shall be deemed to prohibit Executive does not conduct the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two percent (2%) business of such corporation’s (employer in any way that is deliberately adverse to the Company or other entity’s) then-outstanding shares any of capital stock (its Subsidiaries or other interests).Affiliates;
(bii) If Solicit, recruit or hire any person who at any time within the 6 months prior to or after the date of this Agreement is terminated by a Company Group Employee or Company Independent Contractor; provided that the Company for Cause (as defined in Section 6(c)) or if the Executive terminates this Agreement other than in accordance with Section 7 or 8 hereof, or if the Executive is receiving Severance Payments in accordance with Section 9(c) or payments under Section 9(d), then for a period of one (1) year following the date of termination the Executive foregoing shall not prohibit (1A) provide any services, directly a general solicitation to the public of general advertising or indirectly, to any other business similar methods of solicitation by search firms not specifically directed at Company Group Employees or commercial entity in the Company’s Field of Interest (as defined in Section 12), (2) solicit any customers or suppliers of the Company, (3) attempt to persuade or encourage customers or suppliers of the Company not to do business with the Company and/or to do business with a competitor of the Company, (4) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field of Interest, Independent Contractors or (5B) directly Executive from soliciting, recruiting or indirectly employ, hiring any Company Group Employee or seek Company Independent Contractor who has ceased to employ be employed or secure the services in any capacity of, any person employed at that time retained by the Company or any of its Affiliates, Subsidiaries or otherwise encourage or entice any Affiliates for at least 12 months prior to the date of such person to leave such employment; provided, however, that nothing contained in solicitation. For purposes of this Section 5(b) shall be deemed to prohibit 7, the Executive from acquiringterm “Company Group Employees” means, solely as an investmentcollectively, shares officers, directors and employees of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interests). This Section 5(b) shall be subject to written waivers, which may be obtained by the Executive from the Company.
(c) At no time during the Term of this Agreement or thereafter will the Executive knowingly make any written or oral untrue statement or any statement that disparages the Company or any of its Subsidiaries or Affiliates and the term “Company Independent Contractors” means any Person who has been employed as an independent contractor or will agent of the Company knowingly make any written or oral untrue statement or any statement that disparages of its Subsidiaries or Affiliates during the Executive.
(d) If the Executive commits a breach, or threatens to commit a breach, of any of the provisions of this Section 5, the Company shall have the right and remedy to have the provisions of this Agreement, as the case may be, specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury 24-month period prior to the Company and that money damages will not provide an adequate remedy to the Company.
(e) If Termination Date at any of the covenants contained in this Section 5 or any part hereof or thereof, is hereafter construed to be invalid, illegal or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoing, the invalidity, illegality or unenforceability of any one or more of the covenants contained in this Section 5 shall not affect the validity of any other provision hereof, which shall be given full effect without regard to the invalid portions.
(f) If any of the covenants contained in this Section 5, or any part hereof or thereof, is held to be unenforceable because of the duration of such provision, the area covered thereby or the extent thereof, the parties agree that the tribunal making such determination shall have the power, and hereby is directed, to reduce the duration, area and/or extent of such provision and, in its reduced form, such provision shall then be enforceable.
(g) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state within the geographical scope of such other covenants, as to breaches of such covenants in such other jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.time; or
Appears in 2 contracts
Samples: Executive Employment Agreement, Executive Employment Agreement (Intermedia Outdoor Holdings, Inc.)
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During The Executive understands and recognizes that his services to the Term, Company are special and unique and that in the course of performing such services the Executive will have access to and knowledge of Confidential and Proprietary Information (as defined in Section 5) and the Executive agrees that, during the Term and for a period of twelve (12) months thereafter (subject to the provisions of Section 9(e) hereof), he shall not (1) provide without the consent of the Company in any servicesmanner, directly or indirectly, to on behalf of himself or any person, firm, partnership, joint venture, corporation or other business entity (“Person”), enter into or commercial entity without engage in any business which is engaged in any business directly or indirectly competitive with the consent Company’s Business (as defined below), either as an individual for his own account, or as a partner, joint venturer, owner, executive, employee, independent contractor, principal, agent, consultant, salesperson, officer, director or shareholder of a Person in a business competitive with the Company within the geographic area of the Board Company’s Business, which is deemed by the parties hereto to be worldwide. The Executive acknowledges that, due to the nature of the Company’s Business, and the importance to the Company’s Business of its Confidential and Proprietary Information, a violation of this Section 6(a) could cause substantial damage to the Company and its affiliates and, therefore, the Company has a strong legitimate business interest in protecting the continuity of its business interests and the restriction herein agreed to by the Executive narrowly and fairly serves such an important and critical business interest of the Company. For purposes of this Agreement, the “Company’s Business” shall mean the business or (2) participate in businesses set forth on the formation attached Schedule 6(a), which shall be amended from time to time upon the mutual written agreement of the parties, but which will automatically include the research, development and commercialization of any business technologies that are licensed or commercial entity without otherwise acquired by the consent of Company. Notwithstanding the Board; providedforegoing, however, that nothing contained in this Section 5(a6(a) shall be deemed to prohibit the Executive from acquiring(i) acquiring or holding, solely as an for investment, shares publicly traded securities of capital stock any corporation, some or all of the activities of which are competitive with the business of the Company so long as such securities do not, in the aggregate, constitute more than three percent (or other interests3%) of any corporation (class or other entity) not exceeding two percent (2%) series of outstanding securities of such corporation’s (or other entity’s) then-outstanding shares of capital stock (or other interests).
(b) If this Agreement is terminated by the Company for Cause (as defined in Section 6(c)) or if the Executive terminates this Agreement other than in accordance with Section 7 or 8 hereof, or if the Executive is receiving Severance Payments in accordance with Section 9(c) or payments under Section 9(d), then for a period of one (1) year following the date of termination the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity in the Company’s Field of Interest (as defined in Section 12), (2) solicit any customers or suppliers of the Company, (3) attempt to persuade or encourage customers or suppliers of the Company not to do business with the Company and/or to do business with a competitor of the Company, (4) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field of Interest, or (5) directly or indirectly employ, or seek to employ or secure the services in any capacity of, any person employed at that time by the Company or any of its Affiliates, or otherwise encourage or entice any such person to leave such employment; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interests). This Section 5(b) shall be subject to written waivers, which may be obtained by the Executive from the Company.
(c) At no time during the Term of this Agreement or thereafter will the Executive knowingly make any written or oral untrue statement or any statement that disparages the Company or its Affiliates or will the Company knowingly make any written or oral untrue statement or any statement that disparages the Executive.
(d) If the Executive commits a breach, or threatens to commit a breach, of any of the provisions of this Section 5, the Company shall have the right and remedy to have the provisions of this Agreement, as the case may be, specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide an adequate remedy to the Company.
(e) If any of the covenants contained in this Section 5 or any part hereof or thereof, is hereafter construed to be invalid, illegal or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoing, the invalidity, illegality or unenforceability of any one or more of the covenants contained in this Section 5 shall not affect the validity of any other provision hereof, which shall be given full effect without regard to the invalid portions.
(f) If any of the covenants contained in this Section 5, or any part hereof or thereof, is held to be unenforceable because of the duration of such provision, the area covered thereby or the extent thereof, the parties agree that the tribunal making such determination shall have the power, and hereby is directed, to reduce the duration, area and/or extent of such provision and, in its reduced form, such provision shall then be enforceable.
(g) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state within the geographical scope of such other covenants, as to breaches of such covenants in such other jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
Appears in 2 contracts
Samples: Employment Agreement (Ziopharm Oncology Inc), Employment Agreement (Ziopharm Oncology Inc)
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During the Term, the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity without the consent of the Board or (2) participate in the formation of any business or commercial entity without the consent of the Board; provided, however, that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two percent (2%) of such corporation’s (or other entity’s) then-outstanding shares of capital stock (or other interests) and, provided further, that nothing contained herein shall be deemed to limit the Executive’s Permitted Activities pursuant to Section 1(e).
(b) If this Agreement is terminated by the Company for Cause (as defined in Section 6(c)) or if the Executive terminates this Agreement other than in accordance with Section 7 or 8 hereof, or if the Executive is receiving Severance Payments entitled to receive severance payments in connection with a termination of his employment in accordance with Section 9(c9(c)(i) or payments under Section 9(d9(d)(i), then for a period of one two (12) year years following the date of termination the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity in the Company’s Field of Interest (as defined in Section 12), (2) solicit any customers or suppliers of the Company, (3) attempt to persuade or encourage customers or suppliers of the Company not to do business with the Company and/or to do business with a competitor of the Company, (4) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field of Interest, or (5) directly or indirectly employ, or seek to employ or secure the services in any capacity of, any person employed at that time by the Company or any of its Affiliates, or otherwise encourage or entice any such person to leave such employment; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interests) and, provided further, that nothing contained herein shall be deemed to limit Executive’s Permitted Activities pursuant to Section 1(e). This Section 5(b) shall be subject to written waivers, which may be obtained by the Executive from the Company.
(c) At no time during the Term of this Agreement or thereafter will the Executive knowingly make any written or oral untrue statement or any statement that disparages the Company or its Affiliates or will the Company knowingly make any written or oral untrue statement or any statement that disparages the Executive.
(d) If the Executive commits a breach, or threatens to commit a breach, of any of the provisions of this Section 55 or Exhibit A, the Company shall have the right and remedy to have the provisions of this AgreementAgreement or Exhibit A, as the case may be, specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide an adequate remedy to the Company.
(e) If any of the covenants contained in this Section 5 or Exhibit A or any part hereof or thereof, is hereafter construed to be invalid, illegal or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoing, the invalidity, illegality or unenforceability of any one or more of the covenants contained in this Section 5 shall not affect the validity of any other provision hereof, which shall be given full effect without regard to the invalid portions.
(f) If any of the covenants contained in this Section 55 or Exhibit A, or any part hereof or thereof, is held to be unenforceable because of the duration of such provision, the area covered thereby or the extent thereof, the parties agree that the tribunal making such determination shall have the power, and hereby is directed, to reduce the duration, area and/or extent of such provision and, in its reduced form, such provision shall then be enforceable.
(g) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 and Exhibit A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state within the geographical scope of such other covenants, as to breaches of such covenants in such other jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
Appears in 2 contracts
Samples: Employment Agreement (Celsion CORP), Employment Agreement (Celsion CORP)
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During the Term, the Executive Employee shall not (1) provide any services, directly or indirectly, to any other business or commercial entity without the consent of the Board Company, which may be withheld in the Company’s sole discretion, or (2) participate in the formation of any business or commercial entity without the consent of the BoardCompany, which may be withheld in the Company’s sole discretion; provided, however, that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive Employee from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two percent (2%) % of such corporation’s (or other entity’s) then-then outstanding shares of capital stock (or other interestsand provided, further, that nothing contained herein shall be deemed to limit the Employee’s Permitted Activities pursuant to Section 1(c).
(b) If this Agreement the Employee is terminated by the Company for Cause (as defined in Section 6(c)) or if the Executive Employee terminates this Agreement other than in accordance with Section 7 following a Constructive Termination or for Good Reason under Section 8 hereof, or if the Executive is receiving Severance Payments in accordance with Section 9(c) or payments under Section 9(d), then for a period of one (1) year following the date of termination or, if the Executive Employee receives Severance Payments in accordance with Sections 9(c) or Section 9(d), then for the period such Severance Payments are received, the Employee shall not anywhere in the United States (1) provide any services, directly or indirectly, to any other business or commercial entity services in the Company’s Field of Interest (as defined in Section 1214), directly or indirectly, to any other business or commercial entity, (2) solicit any customers or suppliers of the Company, (3) attempt to persuade or encourage customers or suppliers of the Company not to do business with the Company and/or to do business with a competitor of the Company, (4) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field of Interest, or (53) directly or indirectly employ, or seek to employ or secure the services in any capacity of, any person employed at that time by the Company or any of its Affiliates, or otherwise encourage or entice any such person to leave such employment, or solicit or encourage any customer, consultant, independent contractor, or vendor of the Company to terminate or diminish its relationship with the Company; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive Employee from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) % of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interestsand provided, further, that nothing contained herein shall be deemed to limit Employee’s Permitted Activities pursuant to Section 1(c). This Section 5(b) shall be subject to written waivers, which waivers that may be obtained by the Executive Employee from the Company.
(c) At no time during the Term of this Agreement or thereafter will the Executive Employee knowingly make any written or oral verbal untrue statement or any statement that disparages the Company or its Affiliates in communications with any customer, client or will the Company knowingly make any written or oral untrue statement or any statement that disparages the Executivepublic.
(d) If the Executive Employee commits a breach, or threatens to commit a breach, of any of the provisions of this Section 55 or Exhibit A, the Company shall have the right and remedy to have the provisions of this Agreement, as the case may be, Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will may not provide an adequate remedy to the Company. The Employee therefore agrees that the Company, in addition to any other remedies available to it, shall be entitled to preliminary and permanent injunctive relief against any breach or threatened breach by the Employee of any of the provisions of this Section 5 or Appendix A, without having to post bond.
(e) If any of the covenants contained in this Section 5 or Appendix A, or any part hereof or thereof, is hereafter construed to be invalid, illegal invalid or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoingunenforceable, the invalidity, illegality or unenforceability of any one or more of the covenants contained in this Section 5 same shall not affect the validity remainder of any other provision hereofthe covenant or covenants, which shall be given full effect without regard to the invalid portions.
(f) If any of the covenants contained in this Section 55 or Appendix A, or any part hereof or thereof, is held to be unenforceable because of the duration or scope of such provision, provision or the area covered thereby or the extent thereofthereby, the parties agree that the tribunal court making such determination shall have the power, and hereby is directed, power to reduce the duration, duration and/or area and/or extent of such provision and, in its reduced form, such provision shall then be enforceable.
(g) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state states within the geographical scope of such other covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
Appears in 2 contracts
Samples: Employment Agreement (Alexion Pharmaceuticals Inc), Employment Agreement (Alexion Pharmaceuticals Inc)
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During The Employee understands and recognizes that his services to the TermCompany are special and unique and that in the course of performing the Services the Employee will have access to and knowledge of Confidential and Proprietary Information (as defined in Section 5) and the Employee agrees that, during the Executive Term and for a period of six (6) months thereafter, he shall not (1) provide in any servicesmanner, directly or indirectly, to on behalf of himself or any person, firm, partnership, joint venture, corporation or other business entity ("Person"), enter into or commercial entity without engage in any business which is engaged in any business directly or indirectly competitive with the consent business of the Board Company, either as an individual for his own account, or (2) participate as a partner, joint venturer, owner, executive, employee, independent contractor, principal, agent, consultant, salesperson, officer, director or shareholder of a Person in a business competitive with the Company within the geographic area of the Company's business, which is deemed by the parties hereto to be worldwide. The Employee acknowledges that, due to the unique nature of the Company's business and its business model, the loss of any of its clients or business flow, the replication of its business model or the improper use of its Confidential and Proprietary Information could create significant instability and cause substantial damage to the Company and its affiliates and therefore the Company has a strong legitimate business interest in protecting the continuity of its business interests and the restriction herein agreed to by the Employee narrowly and fairly serves such an important and critical business interest of the Company. For the purposes of the non-competition provisions of this Agreement, the Company shall be deemed to be actively engaged on the date hereof in the formation research, development and commercialization of any business or commercial entity without drugs, therapeutics and vaccines for the consent treatment of conditions related to infectious diseases. Notwithstanding the Board; providedforegoing, however, that nothing contained in this Section 5(a6(a) shall be deemed to prohibit the Executive Employee from acquiring(i) acquiring or holding, solely as an for investment, shares publicly traded securities of capital stock any corporation, some or all of the activities of which are competitive with the business of the Company so long as such securities do not, in the aggregate, constitute more than four percent (or other interests4%) of any corporation (class or other entity) not exceeding two percent (2%) series of outstanding securities of such corporation’s (or other entity’s) then-outstanding shares of capital stock (or other interests).
(b) If this Agreement is terminated by During the Company for Cause (as defined in Section 6(c)) or if the Executive terminates this Agreement other than in accordance with Section 7 or 8 hereof, or if the Executive is receiving Severance Payments in accordance with Section 9(c) or payments under Section 9(d), then Term and for a period of one six (16) year following months thereafter, the date of termination the Executive Employee shall not (1) provide any servicesnot, directly or indirectly, to any other business or commercial entity in without the Company’s Field of Interest (as defined in Section 12), (2) solicit any customers or suppliers prior written consent of the Company, :
(3i) attempt to persuade solicit or encourage customers or suppliers induce any employee of the Company not or any of its affiliates to do business leave the employ of the Company or any such subsidiary or affiliate; or hire for any purpose any employee of the Company or any subsidiary or affiliate or any employee who has left the employment of the Company or any subsidiary or affiliate within six (6) months of the termination of such employee's employment with the Company and/or to do business or any such subsidiary or affiliate or at any time in violation of such employee's non-competition agreement with a competitor the Company or any such subsidiary or affiliate; or
(ii) solicit or accept employment or be retained by any Person who, at any time during the term of this Agreement, was an agent, client or customer of the Company, Company or any of its subsidiaries or affiliates where his position will be related to the business of the Company or any such affiliate; or
(4iii) participate in solicit or accept the formation business of any business agent, client or commercial entity engaged primarily in customer of the Company’s Field Company or any of Interestits subsidiaries or affiliates with respect to products, services or (5) directly investments similar to those provided or indirectly employ, or seek to employ or secure the services in any capacity of, any person employed at that time supplied by the Company or any of its Affiliates, subsidiaries or otherwise encourage or entice any such person to leave such employment; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interests). This Section 5(b) shall be subject to written waivers, which may be obtained by the Executive from the Companyaffiliates.
(c) At no time The Company and the Employee each agree that both during the Term and at all times thereafter, neither party shall directly or indirectly disparage, whether or not true, the name or reputation of this Agreement or thereafter will the Executive knowingly make any written or oral untrue statement other party or any statement that disparages of its subsidiaries or affiliates, including but not limited to, any officer, director, employee or shareholder of the Company or any of its Affiliates subsidiaries or will the Company knowingly make any written or oral untrue statement or any statement that disparages the Executiveaffiliates.
(d) If In the Executive commits event that the Employee breaches any provisions of Section 5 or this Section 6 or there is a threatened breach, then, in addition to any other rights which the Company may have, the Company shall (i) be entitled, without the posting of a bond or threatens other security, to commit injunctive relief to enforce the restrictions contained in such Sections and (ii) have the right to require the Employee to account for all compensation, profits, monies, accruals, increments and other benefits (collectively "Benefits") derived or received by the Employee as a breachresult of any transaction constituting a breach of any of the provisions of Section 5 or this Section 6 and the Employee hereby agrees to account for such Benefits to the Company. The Employee agrees that in an action pursuant to this Section 6, of that if the Company makes a prima facie showing that the Employee has violated or intends to violate any of the provisions of this Section 56, the Company shall have need not prove either damage or irreparable injury in order to obtain injunctive relief. The Company and the right and remedy to have the provisions of this Agreement, as the case may be, specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed Employee agree that any such breach action for injunctive or threatened breach will cause irreparable injury equitable relief shall be heard in the courts of the State of California, County of San Diego, or the United States District Court for the Southern District of California and each of the parties hereto agrees to accept service of process by registered or certified mail and to otherwise consent to the Company and that money damages will not provide an adequate remedy to the Companyjurisdiction of such courts.
(e) Each of the rights and remedies enumerated in Section 6(d) shall be independent of the others and shall be in addition to and not in lieu of any other rights and remedies available to the Company at law or in equity. The Employee hereby acknowledges and agrees that the covenant against competition provided for pursuant to Section 6(a) is reasonable with respect to it duration, geographic area and scope. If, at the time of enforcement of this Section 6, a court holds that the restrictions stated herein are unreasonable under the circumstances then existing, the Parties hereto agree that the maximum duration, scope or geographic area legally permissible under such circumstances will be substituted for the duration, scope or area state herein. If any of the covenants contained in this Section 5 6, or any part hereof or thereofof any of them, is hereafter construed or adjudicated to be invalid, illegal invalid or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoingunenforceable, the invalidity, illegality or unenforceability of any one or more of the covenants contained in this Section 5 same shall not affect the validity remainder of any other provision hereof, the covenant or covenants or rights or remedies which shall be given full effect without regard to the invalid portions.
(f) If any . No such holding of the covenants contained invalidity or unenforceability in this Section 5, or any part hereof or thereof, is held to be unenforceable because of the duration of such provision, the area covered thereby or the extent thereof, the parties agree that the tribunal making such determination one jurisdiction shall have the power, and hereby is directed, to reduce the duration, area and/or extent of such provision and, in its reduced form, such provision shall then be enforceable.
(g) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s 's right to the relief provided above in this Section 6 or otherwise in the courts of any other state or jurisdiction within the geographical scope of such other covenants, covenants as to breaches of such covenants in such other respective states or jurisdictions, the above such covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
(f) In the event that an actual proceeding is brought in equity to enforce the provisions of Section 5 or this Section 6, the Employee shall not urge as a defense that there is an adequate remedy at law nor shall the Company be prevented from seeking any other remedies which may be available.
(g) The provisions of this Section 6 shall survive any termination of this Agreement.
Appears in 1 contract
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During the TermEmployment Period, the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity without the consent of the Board or (2) participate in the formation of any business or commercial entity without the consent of the Board; provided, however, that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two percent (2%) of such corporation’s (or other entity’s) then-outstanding shares of capital stock (or other interests) and, provided further, that nothing contained herein shall be deemed to limit the Executive’s Permitted Activities pursuant to Section 1(e).
(b) If the Executive’s employment and this Agreement is terminated by the Company for Cause (as defined in Section 6(c)) or if the Executive terminates employment and this Agreement other than in accordance with pursuant to Section 7 or 8 7(b) hereof, or if the Executive is receiving Severance Payments entitled to receive severance payments in connection with a termination of her employment in accordance with Section 9(c9(c)(i) or payments under Section 9(d9(d)(i), then for a period of one two (12) year years following the date of termination the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity in the Company’s Field of Interest (as defined in Section 12), (2) solicit any customers or suppliers of the Company, (3) attempt to persuade or encourage customers or suppliers of the Company not to do business with the Company and/or to do business with a competitor of the Company, (43) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field of Interest, or (54) directly or indirectly employ, or seek to employ or secure the services in any capacity of, any person employed at that time by the Company or any of its Affiliates, or otherwise encourage or entice any such person to leave such employment; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interests). This Section 5(b) and, provided further, that nothing contained herein shall be subject deemed to written waivers, which may be obtained by the Executive from the Companylimit Executive’s Permitted Activities pursuant to Section 1(e).
(c) At no time during the Term of this Agreement Employment Period or thereafter will the Executive knowingly make any written or oral untrue statement or any statement that disparages the Company or its Affiliates or will the Company knowingly make any written or oral untrue statement or any statement that disparages the Executive. Notwithstanding this provision, the Executive may confer in confidence with her legal representatives and make truthful statements as required by law or valid subpoena.
(d) If the Executive commits a breach, or threatens to commit a breach, of any of the provisions of this Section 55 or Exhibit A, the Company shall have the right and remedy to have the provisions of this AgreementAgreement or Exhibit A, as the case may be, specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide an adequate remedy to the Company.
(e) If any of the covenants contained in this Section 5 or Exhibit A or any part hereof or thereof, is hereafter construed to be invalid, illegal or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoing, the invalidity, illegality or unenforceability of any one or more of the covenants contained in this Section 5 shall not affect the validity of any other provision hereof, which shall be given full effect without regard to the invalid portions.
(f) If any of the covenants contained in this Section 55 or Exhibit A, or any part hereof or thereof, is held to be unenforceable because of the duration of such provision, the area covered thereby or the extent thereof, the parties hereto agree that the tribunal making such determination shall have the power, and hereby is directed, to reduce the duration, area and/or extent of such provision and, in its reduced form, such provision shall then be enforceable.
(g) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 and Exhibit A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state within the geographical scope of such other covenants, as to breaches of such covenants in such other jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Samples: Employment Agreement (Celsion CORP)
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During the Term, the Executive Employee shall not (1) provide any services, directly or indirectly, to any other business or commercial entity without the consent of the Board Company, which may be withheld in the Company’s sole discretion, or (2) participate in the formation of any business or commercial entity without the consent of the BoardCompany, which may be withheld in the Company’s sole discretion; provided, however, that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive Employee from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two percent (2%) % of such corporation’s (or other entity’s) then-then outstanding shares of capital stock (or other interestsand provided, further, that nothing contained herein shall be deemed to limit the Employee’s Permitted Activities pursuant to Section 1(b).
(b) If this Agreement is terminated Upon a termination of the Employee’s employment by the Company for Cause (as defined in any reason other than pursuant to Section 6(c)6(a) or if the Executive terminates this Agreement other than in accordance with Section 7 or 8 hereof6(b), or if upon a termination of the Executive is receiving Severance Payments in accordance Employee’s employment by the Employee for any reason, following such termination of employment and during the Restricted Period, the Employee shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer, or otherwise, compete with Section 9(c) the Company or payments under Section 9(d)any of its Affiliates, then or undertake any planning for a period any business competitive with the Company or any of one (1) year following its Affiliates. Specifically, but without limiting the date of termination foregoing, during the Executive shall not Restricted Period the Employee will not: (1) provide any services, services directly or indirectly, whether as an employee or independent contractor or otherwise, whether with or without compensation, to any other business or commercial entity in the Company’s Field of Interest (as defined in Section 12), (2) solicit United States that is competitive with all or any customers or suppliers portion of the Company, (3) attempt to persuade or encourage customers or suppliers business of the Company not to do business with the Company and/or to do business with a competitor of the Company, or its Affiliates; (42) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field United States that is competitive with all or any portion of Interestthe business of the Company or its Affiliates, or (53) directly or indirectly employ, or seek to employ or secure the services in any capacity ofemploy, any person employed at that time by the Company or any of its AffiliatesAffiliates anywhere in the world, or otherwise encourage or entice any such person to leave such employment; (4) solicit or encourage any independent contractor providing services to the Company or any of its Affiliates anywhere in the world to terminate or diminish its relationship with the Company or its Affiliates; or (5) solicit or encourage any customer, consultant, or vendor of the Company or its Affiliates anywhere in the world, to terminate or diminish its relationship with the Company or its Affiliates; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive Employee from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) % of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interestsand provided, further, that nothing contained herein shall be deemed to limit Employee’s Permitted Activities pursuant to Section 1(b). This Section 5(b) shall be subject to written waivers, which waivers that may be obtained by the Executive Employee from the Company.
(c) At no time during the Term of this Agreement or thereafter thereafter, regardless of the reason for termination, will the Executive Employee knowingly make any written or oral verbal untrue statement or any statement that disparages the Company, its Affiliates, its business, its management, or its products in communications with any customer, client or the public. The employee will, furthermore, not otherwise do or say anything that could disrupt the good morale of employees of the Company or any of its Affiliates Affiliates, or will that xxxxx the interests or reputation of the Company knowingly make any written or oral untrue statement or any statement that disparages the Executiveof its Affiliates.
(d) Nothing in this Agreement or the Proprietary Information and Inventions Agreement limits, restricts, or in any other way affects the Employee’s communicating with any governmental agency or entity, or communicating with any official or staff person of a governmental agency or entity, concerning matters relevant to the governmental agency or entity.
(e) The Employee acknowledges that she has read and considered all the terms and conditions of this Agreement, including the restraints imposed upon her pursuant to Sections 5(a)-(c) above. The Employee agrees without reservation that these restraints are necessary for the reasonable and proper protection of the Company and its Affiliates, and are reasonable in respect to subject matter, length of time, and geographic area. If the Executive Employee commits a breach, or threatens to commit a breach, of any of the provisions of this Section 5, the Company shall have the right and remedy to have the provisions of this Agreement, as the case may be, Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will may not provide an adequate remedy to the Company.
(e) If . The Employee therefore agrees that the Company, in addition to any other remedies available to it, shall be entitled to preliminary and permanent injunctive relief against any breach or threatened breach by the Employee of any of the provisions of this Section 5, without having to post bond. So that the Company may enjoy the full benefit of the covenants contained in this Section 5 or any part hereof or thereofabove, is hereafter construed to the Employee agrees that the Restricted Period shall be invalid, illegal or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the powertolled, and hereby is directedshall not run, to substitute for or limit such provision(s) in order as closely as possible to effectuate during the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoing, the invalidity, illegality or unenforceability period of any one or more breach by the Employee of the covenants contained in this Section 5 shall not affect the validity of any other provision hereof, which shall be given full effect without regard to the invalid portionssuch covenants.
(f) If any of the covenants contained in this Section 5, or any part hereof thereof, is hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect without regard to the invalid portions.
(g) If any of the covenants contained in this Section 5, or any part thereof, is held to be unenforceable because of the duration or scope of such provision, provision or the area covered thereby or the extent thereofthereby, the parties agree that the tribunal court making such determination shall have the power, and hereby is directed, power to reduce the durationduration and/or area of such provision, and that the parties intend for the court to modify the duration and/or area and/or extent of such provision and, to the maximum extent permitted by law. The parties agree that in its reduced form, such provision shall then be enforceable.
(gh) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state states within the geographical scope of such other covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During For a period of two (2) years commencing on the TermInitial Closing Date (the “Restricted Period”), the Executive Seller and Beneficial Owners shall not, and shall not (1) provide permit any servicesof their respective Affiliates to, without the prior written consent of Buyer, directly or indirectly, to (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory, in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee, independent contractor or consultant; or (iii) cause, induce or encourage any material actual or actively solicited prospective client, customer, supplier or licensor of the Business, or any other business person or commercial entity without the consent of the Board who has or (2) participate had in the formation twelve (12) months prior to the Initial Closing Date a material business relationship with the Companies, to terminate or detrimentally modify any such actual or prospective relationship. Notwithstanding the foregoing, Seller and each Beneficial Owner (i) may sit on the board of directors or other governing body of industry trade groups and (ii) may own, directly or indirectly, solely as an investment, securities of any business entity traded on any national securities exchange if Seller or commercial such Beneficial Owner is not a controlling person of, or a member of a group which controls, such entity without the consent and does not, directly or indirectly, own five percent (5%) or more of the Boardany class of securities of such entity; provided, however, that nothing contained herein shall prohibit or limit the Beneficial Owners from being employed by the Companies, Buyer or any of their respective affiliates, or otherwise limit them in the performance of their duties in connection therewith. For the avoidance of doubt, the Parties expressly acknowledge and agree that under no circumstance shall the term Restricted Business be deemed to include (or shall the restrictions set forth in this Section 5(a10.7 apply to) shall be deemed to prohibit (i) the Executive from acquiringbusiness currently conducted by the Legacy Entities (as set forth on Schedule 10.7(a)), solely as an investment, shares of capital stock (ii) the performance or other interests) exercise of any corporation rights, privileges or obligations under the Eurox Agreements, or (or other entityiii) not exceeding two percent any activities outside of the Territory (2%) of such corporation’s (or other entity’s) then-outstanding shares of capital stock (or other interestscollectively, the “Excluded Businesses”).
(b) If this Agreement is terminated by During the Company for Cause (as defined in Section 6(c)) or if the Executive terminates this Agreement other than in accordance with Section 7 or 8 hereofRestricted Period, or if the Executive is receiving Severance Payments in accordance with Section 9(c) or payments under Section 9(d)Seller and Beneficial Owners shall not, then for a period of one (1) year following the date of termination the Executive and shall not (1) provide permit any servicesof their respective Affiliates to, without the prior written consent of Buyer, directly or indirectly, hire or solicit any employees of the Companies as of the Effective Date, or any employees of the Companies who are or were employed by the Companies, Buyer or its Affiliates during the Restricted Period, or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees. Notwithstanding the forgoing, nothing set forth in this Agreement shall restrict Seller or any of its Affiliates (including the Legacy Entities) from utilizing or employing the Beneficial Owners and the other business or commercial entity Persons set forth on Schedule 10.7(b) solely and exclusively in accordance with the principles, obligations, and requirements set forth in the Company’s Field of Interest (as defined in Section 12), (2) solicit any customers or suppliers New Jersey Services Agreement by virtue of the Companyfact that such Person is or may become an employee of the Companies on or after the Initial Closing.
(c) Seller and each Beneficial Owner agrees that, (3) attempt to persuade following the Initial Closing Date, Seller and each Beneficial Owner will not, and will not permit, cause, or encourage customers any of their respective Affiliates, representatives, or suppliers Affiliates’ representatives with knowledge of this provision to, publicly disparage or criticize the Companies, Buyer, or any of their respective Affiliates, or the Business, management, products, or services of any of them, and Seller and Beneficial Owners will not, and will not permit, cause, or encourage any of their Affiliates, representatives, or Affiliates’ representatives with knowledge of this provision to, otherwise do or say anything that could reasonably be expected to disrupt the good morale of employees of the Company not to do business with Companies, Buyer, or any of their respective Affiliates or harm the Company and/or to do business with a competitor interests or reputation of the CompanyCompanies, (4) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field of InterestBuyer, or (5) directly or indirectly employany of their respective Affiliates. Buyer reciprocally agrees that, following the Initial Closing Date, Buyer will not, and will not permit, cause, or seek to employ or secure the services in any capacity of, any person employed at that time by the Company or encourage any of its Affiliates, representatives, or otherwise encourage or entice any such person to leave such employment; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interests). This Section 5(b) shall be subject to written waivers, which may be obtained by the Executive from the Company.
(c) At no time during the Term Affiliates’ representatives with knowledge of this Agreement provision to, publicly disparage or thereafter will criticize the Executive knowingly make any written or oral untrue statement Seller, the Beneficial Owners, or any statement of their respective Affiliates, and will not permit, cause, or encourage any of their Affiliates, representatives, or Affiliates’ representatives with knowledge of this provision to otherwise do or say anything that disparages could reasonably be expected to disrupt the Company good morale of employees of the Seller, or its any of their respective Affiliates or will harm the Company knowingly make any written interests or oral untrue statement reputation of the Seller, the Beneficial Owners or any statement that disparages the Executiveof their respective Affiliates, in each case other than in connection with Xxxxx’s enforcement of its rights pursuant this Agreement, including any claims for indemnification pursuant to ARTICLE XII.
(d) If the Executive commits The Parties acknowledge that a breach, or threatens to commit a breach, of any of the provisions of this Section 5, the Company shall have the right and remedy to have the provisions of this Agreement, as the case may be, specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide an adequate remedy to the Company.
(e) If any of the covenants contained in this Section 5 or any part hereof or thereof, is hereafter construed to be invalid, illegal or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoing, the invalidity, illegality or unenforceability of any one or more of the covenants contained in this Section 5 shall not affect the validity of any other provision hereof, which shall be given full effect without regard to the invalid portions.
(f) If any of the covenants contained in this Section 5, or any part hereof or thereof, is held to be unenforceable because of the duration of such provision, the area covered thereby or the extent thereof, the parties agree that the tribunal making such determination shall have the power, and hereby is directed, to reduce the duration, area and/or extent of such provision and, in its reduced form, such provision shall then be enforceable.
(g) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state within the geographical scope of such other covenants, as to breaches of such covenants in such other jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.Section
Appears in 1 contract
Samples: Equity Purchase Agreement
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During the TermEmployment Period, the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity without the consent of the Board or (2) participate in the formation of any business or commercial entity without the consent of the Board; provided, however, that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two percent (2%) of such corporation’s (or other entity’s) then-outstanding shares of capital stock (or other interests) and, provided further, that nothing contained herein shall be deemed to limit the Executive’s Permitted Activities pursuant to Section 1(f).
(b) If this Agreement is terminated by the Company for Cause (as defined in Section 6(c)) or if the Executive terminates this Agreement other than in accordance with Section 7 or 8 hereof, or if the Executive is receiving Severance Payments entitled to receive severance payments in connection with a termination of her employment in accordance with Section 9(c8(c)(i) or payments under Section 9(d8(d)(i), then for a period of one twelve (112) year months following the date of termination the Executive shall not not, in the United States, (1) provide any services, directly or indirectly, to any other business or commercial entity in the Company’s Field of Interest (as defined in Section 1211), (2) solicit any customers or suppliers of the Company, (3) attempt to persuade or encourage customers or suppliers of the Company not to do business with the Company and/or to do business with a competitor of the Company, (4) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field of Interest, or (5) directly or indirectly employ, or seek to employ or secure the services in any capacity of, any person employed at that time by the Company or any of its AffiliatesAffiliates (as defined in Section 11), or otherwise encourage or entice any such person to leave such employment; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interests) and, provided further, that nothing contained herein shall be deemed to limit Executive’s Permitted Activities pursuant to Section 1(f). This The Executive may request, in writing, that the Company waive its rights and/or the Executive’s obligations under this Section 5(b) in connection with a specific matter or opportunity; provided, that the Company shall have sole discretion to determine whether to grant such a waiver and the terms of any such waiver, which, if granted, shall be subject communicated to written waivers, which may be obtained by the Executive from in writing. If any such waiver is granted, the CompanyExecutive agrees to comply fully with its terms.
(c) At no time during the Term of this Agreement Employment Period or thereafter will the Executive knowingly make any written or oral material untrue statement about the Company or its Affiliates or any written or oral statement that disparages the Company or its Affiliates or will Affiliates. In addition, the Company will direct its executives and senior officers not to knowingly make any material written or oral untrue statement about the Executive or any written or oral statement that disparages the Executive.
(d) If the Company has reason to believe that the Executive commits has committed a breach, or threatens is threatening to commit a breach, of any of the provisions of this Section 55 or Exhibit B, the Company shall have the right and remedy to have the provisions of this AgreementAgreement or Exhibit B, as the case may be, specifically enforced by any court having equity jurisdictionenforced, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide an adequate remedy to the Company.
(e) If any of the covenants contained in this Section 5 or Exhibit B or any part hereof or thereof, is hereafter construed to be invalid, illegal or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoing, the invalidity, illegality or unenforceability of any one or more of the covenants contained in this Section 5 shall not affect the validity of any other provision hereof, which shall be given full effect without regard to the invalid portions.
(f) If any of the covenants contained in this Section 55 or Exhibit B, or any part hereof or thereof, is held to be unenforceable because of the duration of such provision, the area covered thereby or the extent thereof, the parties agree that the tribunal making such determination shall have the power, and hereby is directed, to reduce the duration, area and/or extent of such provision and, in its reduced form, such provision shall then be enforceable.
(g) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state within the geographical scope of such other covenants, as to breaches of such covenants in such other jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Samples: Employment Agreement (Imunon, Inc.)
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During the Term, the Executive Employee shall not (1) provide any services, directly or indirectly, to any other business or commercial entity without the consent of the Board of Directors, which may be withheld in the Company’s sole discretion, or (2) participate in the formation of any business or commercial entity without the consent of the BoardCompany, which may be withheld in the Company’s sole discretion; provided, however, that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive Employee from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two percent (2%) % of such corporation’s (or other entity’s) then-then outstanding shares of capital stock (or other interestsand provided, further, that nothing contained herein shall be deemed to limit the Employee’s Permitted Activities pursuant to Section 1(d).
(b) If this Agreement the Employee is terminated by the Company for Cause (as defined in Section 6(c)) or if the Executive Employee terminates this Agreement other than in accordance with Section 7 following a Constructive Termination or for Good Reason under Section 8 hereof, or if the Executive is receiving Severance Payments in accordance with Section 9(c) or payments under Section 9(d), then for a period of one (1) year following the date of termination or, if the Executive Employee receives Severance Payments in accordance with Sections 9(c) or Section 9(d), then for the period such Severance Payments are received, the Employee shall not anywhere in the United States (1) provide any services, directly or indirectly, to any other business or commercial entity services in the Company’s Field of Interest (as defined in Section 1214), directly or indirectly, to any other business or commercial entity, (2) solicit any customers or suppliers of the Company, (3) attempt to persuade or encourage customers or suppliers of the Company not to do business with the Company and/or to do business with a competitor of the Company, (4) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field of Interest, or (53) directly or indirectly employ, or seek to employ or secure the services in any capacity of, any person employed at that time by the Company or any of its Affiliates, or otherwise encourage or entice any such person to leave such employment, or solicit or encourage any customer, consultant, independent contractor, or vendor of the Company to terminate or diminish its relationship with the Company; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive Employee from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) % of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interestsand provided, further, that nothing contained herein shall be deemed to limit Employee’s Permitted Activities pursuant to Section 1(d). This Section 5(b) shall be subject to written waivers, which waivers that may be obtained by the Executive Employee from the Company.
(c) At no time during the Term of this Agreement or thereafter will the Executive Employee knowingly make any written or oral verbal untrue statement or any statement that disparages the Company or its Affiliates in communications with any customer, client or will the Company knowingly make any written or oral untrue statement or any statement that disparages the Executivepublic.
(d) If the Executive Employee commits a breach, or threatens to commit a breach, of any of the provisions of this Section 55 or Exhibit A, the Company shall have the right and remedy to have the provisions of this Agreement, as the case may be, Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will may not provide an adequate remedy to the Company. The Employee therefore agrees that the Company, in addition to any other remedies available to it, shall be entitled to preliminary and permanent injunctive relief against any breach or threatened breach by the Employee of any of the provisions of this Section 5 or Appendix A, without having to post bond.
(e) If any of the covenants contained in this Section 5 or Appendix A, or any part hereof or thereof, is hereafter construed to be invalid, illegal invalid or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoingunenforceable, the invalidity, illegality or unenforceability of any one or more of the covenants contained in this Section 5 same shall not affect the validity remainder of any other provision hereofthe covenant or covenants, which shall be given full effect without regard to the invalid portions.
(f) If any of the covenants contained in this Section 55 or Appendix A, or any part hereof or thereof, is held to be unenforceable because of the duration or scope of such provision, provision or the area covered thereby or the extent thereofthereby, the parties agree that the tribunal court making such determination shall have the power, and hereby is directed, power to reduce the duration, duration and/or area and/or extent of such provision and, in its reduced form, such provision shall then be enforceable.
(g) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state states within the geographical scope of such other covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During the Term, the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity without the consent of the Board or (2) participate in the formation of any business or commercial entity without the consent of the Board; provided, however, that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two five percent (25%) of such corporation’s (or other entity’s) then-outstanding shares of capital stock (or other interests) and, provided further, that nothing contained herein shall be deemed to limit the Executive’s Permitted Activities pursuant to Section 1(e).
(b) If this Agreement is terminated by the Company for Cause (as defined in Section 6(c)) or if the Executive terminates this Agreement other than in accordance with Section 7 or 8 hereof, or if the Executive is receiving Severance Payments entitled to receive severance payments in connection with a termination of his employment in accordance with Section 9(c9(c)(i) or payments under Section 9(d9(d)(i), then for a period of one two (12) year years following the date of termination the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity in the Company’s Field of Interest (as defined in Section 12), (2) solicit any customers or suppliers of the Company, (3) attempt to persuade or encourage customers or suppliers of the Company not to do business with the Company and/or to do business with a competitor of the Company, (4) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field of Interest, or (5) directly or indirectly employ, or seek to employ or secure the services in any capacity of, any person employed at that time by the Company or any of its Affiliates, or otherwise encourage or entice any such person to leave such employment; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interests) and, provided further, that nothing contained herein shall be deemed to limit Executive’s Permitted Activities pursuant to Section 1(e). This Section 5(b) shall be subject to written waivers, which may be obtained by the Executive from the Company.
(c) At no time during the Term of this Agreement or thereafter will the Executive knowingly make any written or oral untrue statement or any statement that disparages the Company or its Affiliates or will the Company knowingly make any written or oral untrue statement or any statement that disparages the Executive. Notwithstanding this provision, the Executive may confer in confidence with his legal representatives and make truthful statements as required by law.
(d) If the Executive commits a breach, or threatens to commit a breach, of any of the provisions of this Section 55 or Exhibit A, the Company shall have the right and remedy to have the provisions of this AgreementAgreement or Exhibit A, as the case may be, specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide an adequate remedy to the Company.
(e) If any of the covenants contained in this Section 5 or Exhibit A or any part hereof or thereof, is hereafter construed to be invalid, illegal or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties hereto with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoing, the invalidity, illegality or unenforceability of any one or more of the covenants contained in this Section 5 shall not affect the validity of any other provision hereof, which shall be given full effect without regard to the invalid portions.
(f) If any of the covenants contained in this Section 55 or Exhibit A, or any part hereof or thereof, is held to be unenforceable because of the duration of such provision, the area covered thereby or the extent thereof, the parties hereto agree that the tribunal making such determination shall have the power, and hereby is directed, to reduce the duration, area and/or extent of such provision and, in its reduced form, such provision shall then be enforceable.
(g) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 and Exhibit A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state within the geographical scope of such other covenants, as to breaches of such covenants in such other jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Samples: Employment Agreement (Celsion CORP)
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During Consultant agrees that while he is an employee of the TermCompany and during the Consulting Period, the Executive he shall not (1) provide any services, directly or indirectly:
(i) enter into, or attempt to enter into, remain within, or otherwise participate within a Restricted Business (as defined below), as a principal, partner, joint venturer, employee, consultant, agent, broker, intermediary, representative, shareholder, investor, officer or director, or have any other business direct or commercial entity indirect financial interest therein, including without limitation, the consent interest of the Board or (2) participate a creditor in the formation of any business or commercial entity without the consent of the Boardform; provided, however, that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares ownership by Consultant of capital stock (or other interests) listed on a national securities exchange of any corporation engaged in a Restricted Business shall not be deemed a violation of this Agreement if the Consultant and his associates (or other entityas such term is defined in Regulation 14A of the Securities Exchange Act of 1934 as in effect on the date hereof) collectively do not exceeding two own more than an aggregate of one percent (21%) of the stock of such corporation’s ; or
(ii) receive any remuneration in any form from any entity engaged in a Restricted Business; or
(iii) induce or attempt to persuade any then-current employee, agent, manager, consultant or director of the Company or any of its subsidiaries or affiliates to terminate such employment or other entity’srelationship in order to enter into any business relationship or business combination with the Consultant or any other person, whether or not in competition with the Company or any of its subsidiaries or affiliates; or
(iv) then-outstanding shares of capital stock (use contracts, proprietary information, trade secrets, confidential information, customer lists, mailing lists, goodwill, or other interests)intangible property used or useful in connection with the business of the Company or any of its subsidiaries or affiliates; or
(v) solicit, divert, or take away from the Company or any of its subsidiaries or affiliates, or otherwise attempt to establish for Consultant or for any other person, corporation or other business entity, any business relationship with any person which is, or during the one year period preceding such activity was, a customer, client or distributor of the Company or any of its subsidiaries or affiliates.
(b) If For the purposes of this Agreement is terminated by the Company for Cause (as defined in Section 6(c)) or if the Executive terminates this Agreement other than in accordance with Section 7 or 8 hereof4, a “Restricted Business” shall mean a person, company, corporation, or if the Executive other entity, whether existing or to be formed, which is receiving Severance Payments in accordance with Section 9(c) or payments under Section 9(d), then for a period of one (1) year following the date of termination the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity in the Company’s Field of Interest (as defined in Section 12), (2) solicit any customers or suppliers of the Company, (3) attempt to persuade or encourage customers or suppliers of the Company not to do business with the Company and/or to do business with a competitor of the Company, (4) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field of Interest, or (5) directly or indirectly employengaged in, or seek has developed plans to employ directly or secure the services in any capacity ofindirectly engage in, any person employed at that time of the businesses conducted by the Company or any of its Affiliates, subsidiaries or otherwise encourage or entice any such person to leave such employment; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) affiliates in the Company’s Field United States or any other jurisdictions in which the Company or any of Interest not exceeding two percent (2%) of its subsidiaries or affiliates conduct business or have developed plans to conduct business within one year after such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interests). This Section 5(b) shall be subject to written waivers, which may be obtained by the Executive from the Companydevelopment.
(c) At no time during From and following the Term Effective Date (as defined below), Consultant agrees that he will not make any untrue, misleading, or defamatory statements concerning the Company or any of its subsidiaries or affiliates or any of its or their officers or directors, and will not directly or indirectly make, repeat or publish any false, disparaging, negative, unflattering, accusatory, or derogatory remarks or references, whether oral or in writing, concerning the Company or any of its subsidiaries or affiliates, or otherwise take any action which might reasonably be expected to cause damage or harm to the Company or any of its subsidiaries or affiliates or any of its or their officers or directors. However, nothing in this Agreement prohibits Consultant from communicating with or thereafter will the Executive knowingly cooperating in any investigations of any governmental agency on matters within their jurisdictions, provided that this Agreement does prohibit Consultant from recovering any relief, including without limitation monetary relief, as a result of such activities. In agreeing not to make any written or oral untrue statement or any statement that disparages disparaging statements regarding the Company or its Affiliates subsidiaries or will affiliates or its or their officers or directors, Consultant acknowledges that he is making a knowing, voluntary and intelligent waiver of any and all rights he may have to make disparaging comments about the Company knowingly make or its subsidiaries or affiliates or its or their officers or directors, including rights under the First Amendment to the United States Constitution and any written or oral untrue statement or any statement that disparages the Executive.other applicable federal and state constitutional rights. /s/ RFR [initialed]
(d) If It is the Executive commits a breach, or threatens to commit a breach, desire and intent of any of the Company and Consultant that the provisions of this Section 54 shall be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, the Company shall have the right and remedy to have the provisions (i) if any particular portion of this AgreementSection 4 shall be adjudicated to be invalid or unenforceable, as this Section 4 shall be deemed amended to delete therefrom the case may beportion thus adjudicated to be invalid or unenforceable, specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury deletion to apply only with respect to the Company operation of this Section 4 in the particular jurisdiction in which such adjudication is made, and that money damages will not provide an adequate remedy to (ii) in the Company.
(e) If event any of the covenants contained covenant made in this Section 5 or any part hereof or thereof4 shall be more restrictive than permitted by applicable law, is hereafter construed to it shall be invalid, illegal or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject limited to the foregoing, the invalidity, illegality or unenforceability of any one or more of the covenants contained in this Section 5 shall not affect the validity of any other provision hereof, extent which shall be given full effect without regard to the invalid portions.
(f) If any of the covenants contained in this Section 5, or any part hereof or thereof, is held to be unenforceable because of the duration of such provision, the area covered thereby or the extent thereof, the parties agree that the tribunal making such determination shall have the power, and hereby is directed, to reduce the duration, area and/or extent of such provision so permitted and, in its reduced form, such provision shall then be enforceable.
(g) Anything else contained in this Agreement to . Consultant acknowledges that he has received good and valuable consideration for the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the restrictive covenants contained in this Section 5 A upon 4.
(e) Any breach by Consultant of his obligations under Section 4 shall be considered a material breach of this Agreement which shall not be considered curable but shall result in immediate termination of this Agreement and the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwiseConsulting Period, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state within the geographical scope of such other covenants, as to breaches of such covenants in such other jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenantsnotwithstanding Section 2(b) above.
Appears in 1 contract
Samples: Consulting Agreement (Brinks Co)
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During the Term, the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity without the consent of the Board of Directors or (2) participate in the formation of any business or commercial entity without the consent of the BoardBoard of Directors; provided, however, that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two percent (2%) of such corporation’s (or other entity’s) then-outstanding shares of capital stock (or other interests) and, provided further, that nothing contained herein shall be deemed to limit the Executive’s Permitted Activities pursuant to Section 1(e).
(b) If this Agreement is terminated by the Company for Cause (as defined in Section 6(c)) or if the Executive terminates this Agreement other than in accordance with Section 7 or 8 hereof, or if the Executive is receiving Severance Payments in accordance with Section 9(c) or payments under Section 9(d), then for a period of one two (12) year years following the date of termination the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity in the Company’s Field of Interest (as defined in Section 12), (2) solicit any customers or suppliers of the Company, (3) attempt to persuade or encourage customers or suppliers of the Company not to do business with the Company and/or to do business with a competitor of the Company, (4) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field of Interest, or (5) directly or indirectly employ, or seek to employ or secure the services in any capacity of, any person employed at that time by the Company or any of its Affiliates, or otherwise encourage or entice any such person to leave such employment; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interests) and, provided further, that nothing contained herein shall be deemed to limit Executive’s Permitted Activities pursuant to Section 1(e). This Section 5(b) shall be subject to written waivers, which may be obtained by the Executive from the Company.
(c) At no time during the Term of this Agreement or thereafter will the Executive knowingly make any written or oral untrue statement or any statement that disparages the Company or its Affiliates or will the Company knowingly make any written or oral untrue statement or any statement that disparages the Executive.
(d) If the Executive commits a breach, or threatens to commit a breach, of any of the provisions of this Section 55 or Exhibit A, the Company shall have the right and remedy to have the provisions of this AgreementAgreement or Exhibit A, as the case may be, specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide an adequate remedy to the Company.
(e) If any of the covenants contained in this Section 5 or any part hereof or thereof, is hereafter construed to be invalid, illegal or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoing, the invalidity, illegality or unenforceability of any one or more of the covenants contained in this Section 5 shall not affect the validity of any other provision hereof, which shall be given full effect without regard to the invalid portions.
(f) If any of the covenants contained in this Section 5, or any part hereof or thereof, is held to be unenforceable because of the duration of such provision, the area covered thereby or the extent thereof, the parties agree that the tribunal making such determination shall have the power, and hereby is directed, to reduce the duration, area and/or extent of such provision and, in its reduced form, such provision shall then be enforceable.
(g) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state within the geographical scope of such other covenants, as to breaches of such covenants in such other jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Samples: Employment Agreement (Celsion Corp)
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During the Term, the Executive Employee shall not (1) provide any services, directly or indirectly, to any other business or commercial entity without the consent of the Board of Directors, which may be withheld in the Company’s sole discretion, or (2) participate in the formation of any business or commercial entity without the consent of the BoardBoard of Directors, which may be withheld in the Company’s sole discretion; provided, however, that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive Employee from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two percent (2%) % of such corporation’s (or other entity’s) then-then outstanding shares of capital stock (or other interestsand provided, further, that nothing contained herein shall be deemed to limit the Employee’s Permitted Activities pursuant to Section 1(d).
(b) If this Agreement the Employee is terminated by the Company for Cause (as defined in Section 6(c)) or if the Executive Employee terminates this Agreement other than in accordance with Section 7 following a Constructive Termination or for Good Reason under Section 8 hereof, or if the Executive is receiving Severance Payments in accordance with Section 9(c) or payments under Section 9(d), then for a period of one (1) year following the date of termination or, if the Executive Employee receives Severance Payments in accordance with Sections 9(c) or Section 9(d), then for the period such Severance Payments are received, the Employee shall not anywhere in the United States (1) provide any services, directly or indirectly, to any other business or commercial entity services in the Company’s Field of Interest (as defined in Section 1214), directly or indirectly, to any other business or commercial entity, (2) solicit any customers or suppliers of the Company, (3) attempt to persuade or encourage customers or suppliers of the Company not to do business with the Company and/or to do business with a competitor of the Company, (4) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field of Interest, or (53) directly or indirectly employ, or seek to employ or secure the services in any capacity of, any person employed at that time by the Company or any of its Affiliates, or otherwise encourage or entice any such person to leave such employment, or solicit or encourage any customer, consultant, independent contractor, or vendor of the Company to terminate or diminish its relationship with the Company; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive Employee from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) % of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interestsand provided, further, that nothing contained herein shall be deemed to limit Employee’s Permitted Activities pursuant to Section 1(d). This Section 5(b) shall be subject to written waivers, which waivers that may be obtained by the Executive Employee from the Company.
(c) At no time during the Term of this Agreement or thereafter will the Executive Employee knowingly make any written or oral verbal untrue statement or any statement that disparages the Company or its Affiliates in communications with any customer, client or will the Company knowingly make any written or oral untrue statement or any statement that disparages the Executivepublic.
(d) If the Executive Employee commits a breach, or threatens to commit a breach, of any of the provisions of this Section 55 or Exhibit A, the Company shall have the right and remedy to have the provisions of this Agreement, as the case may be, Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will may not provide an adequate remedy to the Company. The Employee therefore agrees that the Company, in addition to any other remedies available to it, shall be entitled to preliminary and permanent injunctive relief against any breach or threatened breach by the Employee of any of the provisions of this Section 5 or Appendix A, without having to post bond.
(e) If any of the covenants contained in this Section 5 or Appendix A, or any part hereof or thereof, is hereafter construed to be invalid, illegal invalid or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoingunenforceable, the invalidity, illegality or unenforceability of any one or more of the covenants contained in this Section 5 same shall not affect the validity remainder of any other provision hereofthe covenant or covenants, which shall be given full effect without regard to the invalid portions.
(f) If any of the covenants contained in this Section 55 or Appendix A, or any part hereof or thereof, is held to be unenforceable because of the duration or scope of such provision, provision or the area covered thereby or the extent thereofthereby, the parties agree that the tribunal court making such determination shall have the power, and hereby is directed, power to reduce the duration, duration and/or area and/or extent of such provision and, in its reduced form, such provision shall then be enforceable.
(g) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state states within the geographical scope of such other covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During The Employee understands and recognizes that his services to the TermCompany are special and unique and that in the course of performing such services the Employee will have access to and knowledge of Confidential and Proprietary Information (as defined in Section 5) and the Employee agrees that, during the Executive Term and for a period of three (3) months thereafter, he shall not (1) provide in any servicesmanner, directly or indirectly, on behalf of himself or any person, firm, partnership, joint venture, corporation or other business entity ("PERSON"), enter into or engage in any business which is engaged in any business directly competitive with the business of the Company, either as an individual for his own account, or as a partner, joint venturer, owner, Employee, employee, independent contractor, principal, agent, consultant, salesperson, officer, director or shareholder of a Person in a business competitive with the Company within the geographic area of the Company's business, which is deemed by the parties hereto to be worldwide. Notwithstanding the foregoing, if Employee's employment is terminated under Section 8(c) or 8(d) of this Agreement or if Employees employment is terminated by the Company without Cause (as defined herein), the preceding shall not apply and such restrictions on Employee's shall not exist. The Employee acknowledges that, due to the unique nature of the Company's business, the loss of any of its clients or business flow or the improper use of its Confidential and Proprietary Information could create significant instability and cause substantial damage to the Company and its affiliates and therefore the Company has a strong legitimate business interest in protecting the continuity of its business interests and the restriction herein agreed to by the Employee narrowly and fairly serves such an important and critical business interest of the Company. For purposes of this Agreement, the Company shall be deemed to be actively engaged on the date hereof in the development of novel application drug delivery systems for presently marketed prescription and over-the-counter drugs and providing consulting services in connection therewith, and in the future in any other business in which it actually devotes substantive resources to study, develop or commercial entity without pursue. Notwithstanding the consent of the Board or (2) participate in the formation of any business or commercial entity without the consent of the Board; providedforegoing, however, that nothing contained in this Section 5(a6(a) shall be deemed to prohibit the Executive Employee from acquiring(i) acquiring or holding, solely as an for investment, shares publicly traded securities of capital stock any corporation, some or all of the activities of which are competitive with the business of the Company so long as such securities do not, in the aggregate, constitute more than three percent (or other interests3%) of any corporation (class or other entity) not exceeding two percent (2%) series of outstanding securities of such corporation’s (or other entity’s) then-outstanding shares of capital stock (or other interests).
(b) If this Agreement is terminated by During the Company for Cause (as defined in Section 6(c)) or if the Executive terminates this Agreement other than in accordance with Section 7 or 8 hereof, or if the Executive is receiving Severance Payments in accordance with Section 9(c) or payments under Section 9(d), then Term and for a period of one (1) year following 12 months thereafter, the date of termination the Executive Employee shall not (1) provide any servicesnot, directly or indirectly, to any other business or commercial entity in without the Company’s Field of Interest (as defined in Section 12), (2) solicit any customers or suppliers prior written consent of the Company, :
(3i) attempt to persuade solicit or encourage customers or suppliers induce any employee of the Company not or any of its affiliates to do business leave the employ of the Company or any such affiliate; or hire for any purpose any employee of the Company or any affiliate or any employee who has left the employment of the Company or any affiliate within one year of the termination of such employee's employment with the Company and/or to do business or any such affiliate or at any time in violation of such employee's non-competition agreement with a competitor the Company or any such affiliate; or
(ii) solicit or accept employment or be retained by any Person who, at any time during the term of this Agreement, was an agent, client or customer of the Company, Company or any of its affiliates where his position will be related to the business of the Company or any such affiliate; or
(4iii) participate in solicit or accept the formation business of any business agent, client or commercial entity engaged primarily in customer of the Company’s Field Company or any of Interestits affiliates with respect to products, services or (5) directly investments similar to those provided or indirectly employ, or seek to employ or secure the services in any capacity of, any person employed at that time supplied by the Company or any of its Affiliates, or otherwise encourage or entice any such person to leave such employment; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interests). This Section 5(b) shall be subject to written waivers, which may be obtained by the Executive from the Companyaffiliates.
(c) At no time The Company and the Employee each agree that both during the Term and at all times thereafter, neither party shall directly or indirectly disparage, whether or not true, the name or reputation of this Agreement or thereafter will the Executive knowingly make any written or oral untrue statement other party or any statement that disparages of its affiliates, including but not limited to, any officer, director, employee or shareholder of the Company or any of its Affiliates or will the Company knowingly make any written or oral untrue statement or any statement that disparages the Executiveaffiliates.
(d) If In the Executive commits event that the Employee breaches any provisions of Section 5 or this Section 6 or there is a threatened breach, then, in addition to any other rights which the Company may have, the Company shall (i) be entitled, without the posting of a bond or threatens other security, to commit injunctive relief to enforce the restrictions contained in such Sections and (ii) have the right to require the Employee to account for and pay over to the Company all compensation, profits, monies, accruals, increments and other benefits (collectively "BENEFITS") derived or received by the Employee as a breach, result of any transaction constituting a breach of any of the provisions of this Section 5, Sections 5 or 6 and the Company shall have the right Employee hereby agrees to account for and remedy to have the provisions of this Agreement, as the case may be, specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any pay over such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide an adequate remedy Benefits to the Company.
(e) Each of the rights and remedies enumerated in Section 6(d) shall be independent of the others and shall be in addition to and not in lieu of any other rights and remedies available to the Company at law or in equity. If any of the covenants contained in this Section 5 6, or any part hereof or thereofof any of them, is hereafter construed or adjudicated to be invalid, illegal invalid or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoingunenforceable, the invalidity, illegality or unenforceability of any one or more of the covenants contained in this Section 5 same shall not affect the validity remainder of any other provision hereof, the covenant or covenants or rights or remedies which shall be given full effect without regard to the invalid portions.
(f) . If any of the covenants contained in this Section 5, or any part hereof or thereof, 6 is held to be invalid or unenforceable because of the duration of such provision, provision or the area covered thereby or the extent thereofthereby, the parties agree that the tribunal court making such determination shall have the power, and hereby is directed, power to reduce the duration, duration and/or area and/or extent of such provision and, and in its reduced form, form such provision shall then be enforceable.
(g) Anything else contained . No such holding of invalidity or unenforceability in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer one jurisdiction to enforce the covenants contained in this Section 5 A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s 's right to the relief provided above in this Section 6 or otherwise in the courts of any other state or jurisdiction within the geographical scope of such other covenants, covenants as to breaches of such covenants in such other respective states or jurisdictions, the above such covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
(f) In the event that an actual proceeding is brought in equity to enforce the provisions of Section 5 or this Section 6, the Employee shall not urge as a defense that there is an adequate remedy at law nor shall the Company be prevented from seeking any other remedies which may be available. The Employee agrees that he shall not raise in any proceeding brought to enforce the provisions of Section 5 or this Section 6 that the covenants contained in such Sections limit his ability to earn a living.
(g) The provisions of this Section 6 shall survive any termination of this Agreement.
Appears in 1 contract
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During the Term, the Executive Employee shall not (1) provide any services, directly or indirectly, to any other business or commercial entity without the consent of the Board Company, which may be withheld in the Company's sole discretion, or (2) participate in the formation of any business or commercial entity without the consent of the BoardCompany, which may be withheld in the Company's sole discretion; provided, however, that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive Employee from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two percent (2%) % of such corporation’s 's (or other entity’s's) then-then outstanding shares of capital stock (or other interestsand provided, further, that nothing contained herein shall be deemed to limit the Employee's Permitted Activities pursuant to Section 1(b).
(b) If this Agreement is terminated Upon a termination of the Employee's employment by the Company for Cause (as defined in any reason other than pursuant to Section 6(c)6(a) or if the Executive terminates this Agreement other than in accordance with Section 7 or 8 hereof6(b), or if upon a termination of the Executive is receiving Severance Payments in accordance Employee's employment by the Employee for any reason, following such termination of employment and during the Restricted Period, the Employee shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer, or otherwise, compete with Section 9(c) the Company or payments under Section 9(d)any of its Affiliates, then or undertake any planning for a period any business competitive with the Company or any of one (1) year following its Affiliates. Specifically, but without limiting the date of termination foregoing, during the Executive shall not Restricted Period the Employee will not: (1) provide any services, services directly or indirectly, whether as an employee or independent contractor or otherwise, whether with or without compensation, to any other business or commercial entity in the Company’s Field of Interest (as defined in Section 12), (2) solicit United States that is competitive with all or any customers or suppliers portion of the Company, (3) attempt to persuade or encourage customers or suppliers business of the Company not to do business with the Company and/or to do business with a competitor of the Company, or its Affiliates; (42) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field United States that is competitive with all or any portion of Interestthe business of the Company or its Affiliates, or (53) directly or indirectly employ, or seek to employ or secure the services in any capacity ofemploy, any person employed at that time by the Company or any of its AffiliatesAffiliates anywhere in the world, or otherwise encourage or entice any such person to leave such employment; (4) solicit or encourage any independent contractor providing services to the Company or any of its Affiliates anywhere in the world to terminate or diminish its relationship with the Company or its Affiliates; or (5) solicit or encourage any customer, consultant, or vendor of the Company or its Affiliates anywhere in the world, to terminate or diminish its relationship with the Company or its Affiliates; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive Employee from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) % of such corporation’s 's (or other entity’s's) then outstanding shares of capital stock (or other interestsand provided, further, that nothing contained herein shall be deemed to limit Employee's Permitted Activities pursuant to Section l(b). This Section 5(b) shall be subject to written waivers, which waivers that may be obtained by the Executive Employee from the Company.
(c) At no time during the Term of this Agreement or thereafter thereafter, regardless of the reason for termination, will the Executive Employee knowingly make any written or oral verbal untrue statement or any statement that disparages the Company, its Affiliates, its business, its management, or its products in communications with any customer, client or the public. The employee will, furthermore, not otherwise do or say anything that could disrupt the good morale of employees of the Company or any of its Affiliates Affiliates, or will that xxxxx the interests or reputation of the Company knowingly make any written or oral untrue statement or any statement that disparages the Executiveof its Affiliates.
(d) Nothing in this Agreement or the Proprietary Information and Inventions Agreement limits, restricts, or in any other way affects the Employee's communicating with any governmental agency or entity, or communicating with any official or staff person of a governmental agency or entity, concerning matters relevant to the governmental agency or entity.
(e) The Employee acknowledges that he has read and considered all the terms and conditions of this Agreement, including the restraints imposed upon him pursuant to Sections 5(a)-(c) above. The Employee agrees without reservation that these restraints are necessary for the reasonable and proper protection of the Company and its Affiliates, and are reasonable in respect to subject matter, length of time, and geographic area. If the Executive Employee commits a breach, or threatens to commit a breach, of any of the provisions of this Section 5, the Company shall have the right and remedy to have the provisions of this Agreement, as the case may be, Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will may not provide an adequate remedy to the Company.
(e) If . The Employee therefore agrees that the Company, in addition to any other remedies available to it, shall be entitled to preliminary and permanent injunctive relief against any breach or threatened breach by the Employee of any of the provisions of this Section 5, without having to post bond. So that the Company may enjoy the full benefit of the covenants contained in this Section 5 or any part hereof or thereofabove, is hereafter construed to the Employee agrees that the Restricted Period shall be invalid, illegal or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the powertolled, and hereby is directedshall not run, to substitute for or limit such provision(s) in order as closely as possible to effectuate during the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoing, the invalidity, illegality or unenforceability period of any one or more breach by the Employee of the covenants contained in this Section 5 shall not affect the validity of any other provision hereof, which shall be given full effect without regard to the invalid portionssuch covenants.
(f) If any of the covenants contained in this Section 5, or any part hereof thereof, is hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect without regard to the invalid portions.
(a) If any of the covenants contained in this Section 5, or any part thereof, is held to be unenforceable because of the duration or scope of such provision, provision or the area covered thereby or the extent thereofthereby, the parties agree that the tribunal court making such determination shall have the power, and hereby is directed, power to reduce the durationduration and/or area of such provision, and that the patties intend for the court to modify the duration and/or area and/or extent of such provision and, to the maximum extent permitted by law. The parties agree that in its reduced form, such provision shall then be enforceable.
(gb) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s 's right to the relief provided above in the courts of any other state states within the geographical scope of such other covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Samples: Employment Agreement (Alexion Pharmaceuticals, Inc.)
Non-Competition, Non-Solicitation and Non-Disparagement. (a) a. During the Term, the Executive Employee shall not (1) provide any services, directly or indirectly, to any other business or commercial entity without the consent of the Board Company, which may be withheld in the Company’s sole discretion, or (2) participate in the formation of any business or commercial entity without the consent of the BoardCompany, which may be withheld in the Company’s sole discretion; provided, however, that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive Employee from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two percent (2%) % of such corporation’s (or other entity’s) then-then outstanding shares of capital stock (or other interestsand provided, further, that nothing contained herein shall be deemed to limit the Employee’s Permitted Activities pursuant to Section 1(b).
(b) If this Agreement is terminated b. Upon a termination of the Employee’s employment by the Company for Cause (as defined in any reason other than pursuant to Section 6(c)6(a) or if the Executive terminates this Agreement other than in accordance with Section 7 or 8 hereof6(b), or if upon a termination of the Executive is receiving Severance Payments in accordance Employee’s employment by the Employee for any reason, following such termination of employment and during the Restricted Period, the Employee shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer, or otherwise, compete with Section 9(c) the Company or payments under Section 9(dany of its Affiliates, or undertake any planning for any business competitive with the Company or any of its Affiliates (a “Competing Organization”). Specifically, then for a period of one (1) year following but without limiting the date of termination foregoing, during the Executive shall not Restricted Period the Employee will not: (1) provide any services, services directly or indirectly, whether as an employee or independent contractor or otherwise, whether with or without compensation, to any other business or commercial entity in the Company’s Field of Interest (as defined in Section 12), (2) solicit United States that is competitive with all or any customers or suppliers portion of the Company, (3) attempt to persuade or encourage customers or suppliers business of the Company not to do business with the Company and/or to do business with a competitor of the Company, or its Affiliates; (42) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field United States that is competitive with all or any portion of Interestthe business of the Company or its Affiliates, or (53) directly or indirectly employ, or seek to employ or secure the services in any capacity ofemploy, any person employed at that time by the Company or any of its AffiliatesAffiliates anywhere in the world, or otherwise encourage or entice any such person to leave such employment; (4) solicit or encourage any independent contractor providing services to the Company or any of its Affiliates anywhere in the world to terminate or diminish its relationship with the Company or its Affiliates; or (5) solicit or encourage any customer, consultant, or vendor of the Company or its Affiliates anywhere in the world, to terminate or diminish its relationship with the Company or its Affiliates; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive Employee from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) % of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interestsand provided, further, that nothing contained herein shall be deemed to limit Employee’s Permitted Activities pursuant to Section 1(b). This Section 5(b) shall be subject to written waivers, which waivers that may be obtained by the Executive Employee from the Company. For purposes of this Section 5(b), an entity shall be deemed to be a Competing Organization if, as of the date that the Employee leaves employment with the Company (the “Separation Date”), it is engaged in the Company’s “Field of Interest,” which is hereby defined to include all businesses of the Company related to the following areas: (i) complement inhibition or inhibitors; (ii) diseases for which the Company has marketed products as of the Separation Date; (iii) diseases or targets for which the Company has a product candidate in clinical development as of the Separation Date; (iv) diseases or targets for which the Company has a pre-clinical product candidate as of the Separation Date, provided that the Competing Organization has either a marketed product or a product candidate that is under active development or testing for the same disease or target; and (v) companies, technologies or therapeutic areas that, to Employee’s knowledge, the Company either is evaluating or has evaluated for business development purposes within the 12 months preceding the Separation Date.
(c) c. At no time during the Term of this Agreement or thereafter thereafter, regardless of the reason for termination, will the Executive Employee knowingly make any written or oral verbal untrue statement or any statement that disparages the Company, its Affiliates, its business, its management, or its products in communications with any customer, client or the public. The employee will, furthermore, not otherwise do or say anything that could disrupt the good morale of employees of the Company or any of its Affiliates Affiliates, or will that xxxxx the interests or reputation of the Company knowingly make any written or oral untrue statement or any statement that disparages the Executiveof its Affiliates.
(dd. Nothing in this Agreement or the Proprietary Information and Inventions Agreement limits, restricts, or in any other way affects the Employee’s communicating with any governmental agency or entity, or communicating with any official or staff person of a governmental agency or entity, concerning matters relevant to the governmental agency or entity.
e. The Employee acknowledges that he has read and considered all the terms and conditions of this Agreement, including the restraints imposed upon him pursuant to Sections 5(a)-(c) above. The Employee agrees without reservation that these restraints are necessary for the reasonable and proper protection of the Company and its Affiliates, and are reasonable in respect to subject matter, length of time, and geographic area. If the Executive Employee commits a breach, or threatens to commit a breach, of any of the provisions of this Section 5, the Company shall have the right and remedy to have the provisions of this Agreement, as the case may be, Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will may not provide an adequate remedy to the Company. The Employee therefore agrees that the Company, in addition to any other remedies available to it, shall be entitled to preliminary and permanent injunctive relief against any breach or threatened breach by the Employee of any of the provisions of this Section 5, without having to post bond. So that the Company may enjoy the full benefit of the covenants contained above, the Employee agrees that the Restricted Period shall be tolled, and shall not run, during the period of any breach by the Employee of such covenants.
(e) f. If any of the covenants contained in this Section 5 5, or any part hereof or thereof, is hereafter construed to be invalid, illegal invalid or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoingunenforceable, the invalidity, illegality or unenforceability of any one or more of the covenants contained in this Section 5 same shall not affect the validity remainder of any other provision hereofthe covenant or covenants, which shall be given full effect without regard to the invalid portions.
(f) g. If any of the covenants contained in this Section 5, or any part hereof or thereof, is held to be unenforceable because of the duration or scope of such provision, provision or the area covered thereby or the extent thereofthereby, the parties agree that the tribunal court making such determination shall have the power, and hereby is directed, power to reduce the durationduration and/or area of such provision, and that the parties intend for the court to modify the duration and/or area and/or extent of such provision and, to the maximum extent permitted by law. The parties agree that in its reduced form, such provision shall then be enforceable.
(g) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 A upon the courts of any state within the geographical scope of such covenants. h. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state states within the geographical scope of such other covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During the Term, the Executive Employee shall not (1) provide any services, directly or indirectly, to any other business or commercial entity without the consent of the Board Company, which may be withheld in the Company’s sole discretion, or (2) participate in the formation of any business or commercial entity without the consent of the BoardCompany, which may be withheld in the Company’s sole discretion; provided, however, that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive Employee from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two percent (2%) % of such corporation’s (or other entity’s) then-then outstanding shares of capital stock (and provided, further, that nothing contained herein shall be deemed to limit the Employee’s Permitted Activities pursuant to Section 1(c) or other interestslimit his ability to serve on an outside board of directors if first approved by the Board under Section 1(d).
(b) If this Agreement is terminated Upon a termination of the Employee’s employment by the Company for Cause (as defined in any reason other than pursuant to Section 6(c)6(a) or if the Executive terminates this Agreement other than in accordance with Section 7 or 8 hereof6(b), or if upon a termination of the Executive is receiving Severance Payments in accordance with Section 9(c) or payments under Section 9(d)Employee’s employment by the Employee for any reason, then for a period following such termination of one (1) year following employment and during the date of termination Restricted Period, the Executive Employee shall not (1) provide any services, directly or indirectly, to any other business or commercial entity services in the Company’s Field of Interest (as defined in Section 1214), directly or indirectly, to any other business or commercial entity, (2) solicit any customers or suppliers of the Company, (3) attempt to persuade or encourage customers or suppliers of the Company not to do business with the Company and/or to do business with a competitor of the Company, (4) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field of Interest, or (53) directly or indirectly employ, or seek to employ or secure the services in any capacity of, any person employed at that time by the Company or any of its Affiliates, or otherwise encourage or entice any such person to leave such employment, or solicit or encourage any customer, consultant, independent contractor, or vendor of the Company to terminate or diminish its relationship with the Company; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive Employee from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) % of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interestsand provided, further, that nothing contained herein shall be deemed to limit Employee’s Permitted Activities pursuant to Section 1(c). This Section 5(b) shall be subject to written waivers, which waivers that may be obtained by the Executive Employee from the Company.
(c) At no time during the Term of this Agreement or thereafter thereafter, regardless of the reason for termination, will the Executive Employee knowingly make any written or oral verbal untrue statement or any statement that disparages the Company, its Affiliates, its business, its management, or its products in communications with any customer, client or the public. The employee will, furthermore, not otherwise do or say anything that could disrupt the good morale of employees of the Company or any of its Affiliates Affiliates, or will that xxxxx the interests or reputation of the Company knowingly make any written or oral untrue statement or any statement that disparages the Executiveof its Affiliates.
(d) Nothing in this Agreement or the Proprietary Information and Inventions Agreement limits, restricts, or in any other way affects the Employee’s communicating with any governmental agency or entity, or communicating with any official or staff person of a governmental agency or entity, concerning matters relevant to the governmental agency or entity.
(e) The Employee acknowledges that he has read and considered all the terms and conditions of this Agreement, including the restraints imposed upon him pursuant to Sections 5(a)-(c) above. The Employee agrees without reservation that these restraints are necessary for the reasonable and proper protection of the Company and its Affiliates, and are reasonable in respect to subject matter, length of time, and geographic area. If the Executive Employee commits a breach, or threatens to commit a breach, of any of the provisions of this Section 5, the Company shall have the right and remedy to have the provisions of this Agreement, as the case may be, Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will may not provide an adequate remedy to the Company.
(e) If . The Employee therefore agrees that the Company, in addition to any other remedies available to it, shall be entitled to preliminary and permanent injunctive relief against any breach or threatened breach by the Employee of any of the provisions of this Section 5, without having to post bond. So that the Company may enjoy the full benefit of the covenants contained in this Section 5 or any part hereof or thereofabove, is hereafter construed to the Employee agrees that the Restricted Period shall be invalid, illegal or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the powertolled, and hereby is directedshall not run, to substitute for or limit such provision(s) in order as closely as possible to effectuate during the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoing, the invalidity, illegality or unenforceability period of any one or more breach by the Employee of the covenants contained in this Section 5 shall not affect the validity of any other provision hereof, which shall be given full effect without regard to the invalid portionssuch covenants.
(f) If any of the covenants contained in this Section 5, or any part hereof thereof, is hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect without regard to the invalid portions.
(g) If any of the covenants contained in this Section 5, or any part thereof, is held to be unenforceable because of the duration or scope of such provision, provision or the area covered thereby or the extent thereofthereby, the parties agree that the tribunal court making such determination shall have the power, and hereby is directed, power to reduce the durationduration and/or area of such provision, and that the parties intend for the court to modify the duration and/or area and/or extent of such provision and, to the maximum extent permitted by law. The parties agree that in its reduced form, such provision shall then be enforceable.
(gh) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state states within the geographical scope of such other covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During You covenant and agree that Section 7 of your Employment Agreement survives termination of the TermEmployment Agreement and the Term hereof to the following extent. You covenant and agree that during the Term and for a period of twelve (12) months thereafter, you will not, on behalf of yourself or any person, firm, partnership, joint venture, corporation or other business entity (“Person”), directly or indirectly enter into or engage in any business which is engaged in any business directly competitive with the business of the Company, either as an individual for your own account, or as a partner, joint venturer, owner, executive, employee, independent contractor, principal, agent, consultant, salesperson, officer, director or shareholder of a Person in a business competitive with the Company within the geographic area of the Company’s business, which you agree is deemed to be worldwide. For purposes of this Agreement, the Executive Company shall not be deemed to be actively engaged on the date hereof in the development of novel application drug delivery systems for presently marketed prescription and over-the-counter drugs and providing consulting services in connection therewith, and in the future in any other business in which it actually devotes substantive resources to study, develop or pursue. Notwithstanding the foregoing, nothing contained herein shall be deemed to prohibit you from acquiring or holding, directly or indirectly (1including through membership in a partnership, corporation, limited liability company or other entity in which you recuse yourself from involvement therein), solely for investment, publicly traded securities of any corporation, some or all of the activities of which are competitive with the business of the Company so long as such securities do not, in the aggregate, constitute more than 4.9% of any class or series of outstanding securities of such corporation.
(b) provide any servicesYou further covenant and agree that during the Term and for twelve (12) months thereafter, you will not, directly or indirectly, to any other business or commercial entity without the prior written consent of the Board Company: (i) solicit or induce any employee of the Company or any of its affiliates to leave the employee of the Company or any such affiliate; or hire for any purpose any employee of the Company or any affiliate or any employee who has left the employment of the Company or any affiliate within one year of the termination of such employee’s employment with the Company or any such affiliate or at any time in violation of such employee’s non-competition agreement with the Company or any such affiliate; or (2) participate in the formation of any business or commercial entity without the consent of the Board; provided, however, that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two percent (2%) of such corporation’s (or other entity’s) then-outstanding shares of capital stock (or other interests).
(b) If this Agreement is terminated by the Company for Cause (as defined in Section 6(c)) or if the Executive terminates this Agreement other than in accordance with Section 7 or 8 hereof, or if the Executive is receiving Severance Payments in accordance with Section 9(c) or payments under Section 9(d), then for a period of one (1) year following the date of termination the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity in the Company’s Field of Interest (as defined in Section 12), (2ii) solicit or accept employment or be retained by any customers or suppliers of Person who, at any time during your employment with the Company, (3) attempt to persuade was an agent, client or encourage customers or suppliers customer of the Company not or any of its affiliates where your position will be related to do the business with of the Company and/or to do of any such affiliate; or (iii) solicit or accept the business with a competitor of any agent, client or customer of the CompanyCompany or any of its affiliates with respect to products, (4) participate in the formation of any business services or commercial entity engaged primarily in the Company’s Field of Interest, investments similar to those provided or (5) directly or indirectly employ, or seek to employ or secure the services in any capacity of, any person employed at that time supplied by the Company or any of its Affiliates, or otherwise encourage or entice any such person to leave such employment; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interests). This Section 5(b) shall be subject to written waivers, which may be obtained by the Executive from the Companyaffiliates.
(c) At no time during You further covenant and agree that you will not directly or indirectly disparage, whether or not true, the Term name or reputation of this Agreement or thereafter will the Executive knowingly make any written or oral untrue statement or any statement that disparages the Company or any of its Affiliates affiliates, including but not limited to, any officer, director, employee or will shareholder of the Company knowingly make any written or oral untrue statement or any statement that disparages the Executiveof its affiliates.
(d) If the Executive commits a breach, or threatens to commit a breach, of any of the provisions of this Section 5, the Company shall have the right and remedy to have the provisions of this Agreement, as the case may be, specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide an adequate remedy to the Company.
(e) If any of the covenants contained in this Section 5 or any part hereof or thereof, is hereafter construed to be invalid, illegal or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoing, the invalidity, illegality or unenforceability of any one or more of the covenants contained in this Section 5 shall not affect the validity of any other provision hereof, which shall be given full effect without regard to the invalid portions.
(f) If any of the covenants contained in this Section 5, or any part hereof or thereof, is held to be unenforceable because of the duration of such provision, the area covered thereby or the extent thereof, the parties agree that the tribunal making such determination shall have the power, and hereby is directed, to reduce the duration, area and/or extent of such provision and, in its reduced form, such provision shall then be enforceable.
(g) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state within the geographical scope of such other covenants, as to breaches of such covenants in such other jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Samples: Separation, Consulting and General Release Agreement (Novadel Pharma Inc)
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During the Term, the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity without the consent of the Board or (2) participate in the formation of any business or commercial entity without the consent of the Board; provided, however, that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two percent (2%) of such corporation’s (or other entity’s) then-outstanding shares of capital stock (or other interests) and, provided further, that nothing contained herein shall be deemed to limit the Executive’s Permitted Activities pursuant to Section 1(e).
(b) If this Agreement is terminated by the Company for Cause (as defined in Section 6(c)) or if the Executive terminates this Agreement other than in accordance with Section 7 or 8 hereof, or if the Executive is receiving Severance Payments in accordance with Section 9(c) or payments under Section 9(d), then for a period of one two (12) year years following the date of termination the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity in the Company’s Field of Interest (as defined in Section 12), (2) solicit any customers or suppliers of the Company, (3) attempt to persuade or encourage customers or suppliers of the Company not to do business with the Company and/or to do business with a competitor of the Company, (4) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field of Interest, or (5) directly or indirectly employ, or seek to employ or secure the services in any capacity of, any person employed at that time by the Company or any of its Affiliates, or otherwise encourage or entice any such person to leave such employment; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interests) and, provided further, that nothing contained herein shall be deemed to limit Executive’s Permitted Activities pursuant to Section 1(e). This Section 5(b) shall be subject to written waivers, which may be obtained by the Executive from the Company.
(c) At no time during the Term of this Agreement or thereafter will the Executive knowingly make any written or oral untrue statement or any statement that disparages the Company or its Affiliates or will the Company knowingly make any written or oral untrue statement or any statement that disparages the Executive.
(d) If the Executive commits a breach, or threatens to commit a breach, of any of the provisions of this Section 55 or Exhibit A, the Company shall have the right and remedy to have the provisions of this AgreementAgreement or Exhibit A, as the case may be, specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide an adequate remedy to the Company.
(e) If any of the covenants contained in this Section 5 or Exhibit A or any part hereof or thereof, is hereafter construed to be invalid, illegal or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoing, the invalidity, illegality or unenforceability of any one or more of the covenants contained in this Section 5 shall not affect the validity of any other provision hereof, which shall be given full effect without regard to the invalid portions.
(f) If any of the covenants contained in this Section 55 or Exhibit A, or any part hereof or thereof, is held to be unenforceable because of the duration of such provision, the area covered thereby or the extent thereof, the parties agree that the tribunal making such determination shall have the power, and hereby is directed, to reduce the duration, area and/or extent of such provision and, in its reduced form, such provision shall then be enforceable.
(g) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 and Exhibit A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state within the geographical scope of such other covenants, as to breaches of such covenants in such other jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Samples: Employment Agreement (Celsion CORP)
Non-Competition, Non-Solicitation and Non-Disparagement. While this Agreement is in effect, and during Xxxxxxx’x employment with the Company and for a period of twelve (12) months following termination of Xxxxxxx’x employment for any reason (or, with respect to subclause (d), at all times thereafter), Xxxxxxx covenants not to:
(a) During engage in, own, or have any interest in, whether alone or together with or on behalf of or through any other person or entity, whether as a sole proprietor, partner, shareholder, agent, officer, director, employee, advisor, consultant, trustee, beneficiary or otherwise, in any business or organization which competes in the Termsame field with the Company, which is the Executive shall not development, manufacture, sales, service and deployment of infrared (1thermal) provide cameras and systems, including training in the use of such cameras and systems and software used therein, and/or other business the Company may engage in during Xxxxxxx’x employment with the Company, or may have taken material steps toward engaging in as of the termination of such employment (a “Competing Entity”), anywhere in the world; or
(b) solicit or attempt to hire, influence, or otherwise direct any servicesemployee, consultant, contractor, or other service provider of the Company or its affiliates to leave or reduce their employment or engagement; or
(c) persuade or attempt to persuade or otherwise induce any other person or entity which has a business relationship or planned relationship with the Company at any time during Xxxxxxx’x employment, and had a business relationship with the Company within the two-year period prior to any such persuasion, interference or other action prohibited by this paragraph, to discontinue, reduce or adversely modify such business relationship with the Company, or otherwise attempt to interfere with such business relationship of the Company; or
(d) make statements or representations, or otherwise communicate, directly or indirectly, to any other business or commercial entity without the consent of the Board or (2) participate in the formation of any business or commercial entity without the consent of the Board; providedwriting, however, that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two percent (2%) of such corporation’s (or other entity’s) then-outstanding shares of capital stock (or other interests).
(b) If this Agreement is terminated by the Company for Cause (as defined in Section 6(c)) or if the Executive terminates this Agreement other than in accordance with Section 7 or 8 hereoforally, or if the Executive is receiving Severance Payments in accordance with Section 9(c) otherwise, or payments under Section 9(d), then for a period of one (1) year following the date of termination the Executive shall not (1) provide take any servicesaction which may, directly or indirectly, to any other business or commercial entity in the Company’s Field of Interest (as defined in Section 12), (2) solicit any customers or suppliers of the Company, (3) attempt to persuade or encourage customers or suppliers of the Company not to do business with the Company and/or to do business with a competitor of the Company, (4) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field of Interest, or (5) directly or indirectly employ, or seek to employ or secure the services in any capacity of, any person employed at that time by disparage the Company or any of its Affiliatessubsidiaries or affiliates or their respective officers, directors, employees, advisors, businesses or otherwise encourage or entice any such person to leave such employment; providedreputations, however, except as protected by paragraph 8 below. The parties acknowledge that nothing contained the type and periods of restriction imposed in this Section 5(b) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interests). This Section 5(b) shall be subject to written waivers, which may be obtained by the Executive from the Company.
(c) At no time during the Term of this Agreement or thereafter will the Executive knowingly make any written or oral untrue statement or any statement that disparages the Company or its Affiliates or will the Company knowingly make any written or oral untrue statement or any statement that disparages the Executive.
(d) If the Executive commits a breach, or threatens to commit a breach, of any of the provisions of this Section 5, paragraph 7 are fair and reasonable and are reasonably required for the Company shall have the right and remedy to have the provisions protection of this Agreement, as the case may be, specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide an adequate remedy to the goodwill associated with the business of the Company.
(e) . If any of the covenants contained in this Section 5 paragraph 7, or any part hereof or thereof, is hereafter construed to be invalid, illegal invalid or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoingunenforceable, the invalidity, illegality or unenforceability of any one or more of the covenants contained in this Section 5 same shall not affect the validity remainder of any other provision hereofthe covenant or covenants, which shall be given full effect effect, without regard to the invalid portions.
(f) , and the invalid or unenforceable provision or provisions shall be modified so as to be enforceable and valid consistent with the intent of the parties, to the fullest extent allowed by law. Xxxxxxx acknowledges that the Company conducts business world-wide. If any provision of this Agreement is deemed to be overly restrictive, a court of proper jurisdiction may alter such provision to provide for the maximum protection of the covenants contained Company deemed reasonable under applicable law. Notwithstanding the foregoing, Xxxxxxx acknowledges and agrees that all of the provisions in this Section 5paragraph 7 do not impose an undue hardship on him, or are fair and reasonable to him under the circumstances, and Xxxxxxx therefore waives any part hereof or thereof, is held defense to be unenforceable because the enforcement of the duration of terms hereof on such provision, the area covered thereby or the extent thereof, the parties agree that the tribunal making such determination shall have the power, and hereby is directed, to reduce the duration, area and/or extent of such provision and, in its reduced form, such provision shall then be enforceablegrounds.
(g) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state within the geographical scope of such other covenants, as to breaches of such covenants in such other jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Samples: Employment Agreement (Infrared Cameras Holdings, Inc.)
Non-Competition, Non-Solicitation and Non-Disparagement. a. For a period of twenty-four (a24) During months after the TermTermination Date, Employee shall not, unless he receives the Executive shall not (1) provide any servicesprior written consent of WESCO, directly or indirectly, own an interest in, manage, operate, join, control, lend money or render financial or other assistance to, participate in or be connected with, as an officer, employee, partner, stockholder, consultant or otherwise, or engage in any activity or capacity (collectively, the “Competitive Activities”) with respect to any individual, partnership, limited liability company, firm, corporation or other business organization or commercial entity without (each, a “Person”), that is engaged directly or indirectly in the consent distribution of electrical construction products or electrical and industrial maintenance, repair and operating supplies, or the provision of integrated supply services, or that is in competition with any of the Board business activities of WESCO or (2) participate WESCO’s direct or indirect subsidiaries anywhere in the formation of any business or commercial entity without the consent of the Boardworld; provided, however, that nothing contained in this Section 5(athe foregoing (a) shall be deemed not apply with respect to any line-of-business in which WESCO or WESCO’s direct or indirect subsidiaries were not engaged on or before the Termination Date, and (b) shall not prohibit the Executive Employee from acquiringowning, solely as or otherwise having an investmentinterest in, shares of capital stock less than one percent (or other interests1%) of any corporation (publicly-owned entity or other entity) not exceeding two three percent (23%) of any private equity fund or similar investment fund that invests in companies engaged in the distribution of electrical construction products or electrical and industrial maintenance, repair and operating supplies, or the provision of integrated supply services, provided Employee has no active role with respect to any investment by such corporation’s (or other entity’s) then-outstanding shares of capital stock (or other interests)fund in any Person referred to in this Section.
b. For a period of twenty-four (24) months after the Termination Date, Employee shall not, whether for his own account or for the account of any other Person, intentionally solicit, endeavor to entice away from WESCO or WESCO’s direct or indirect subsidiaries, or otherwise interfere with the relationship of WESCO or WESCO’s direct or indirect subsidiaries with, (a) any person who is employed by WESCO or WESCO’s direct or indirect subsidiaries (including any independent sales representatives or organizations), or (b) If this Agreement is terminated by the Company for Cause (as defined in Section 6(c)) any client or if the Executive terminates this Agreement other than in accordance with Section 7 customer of WESCO or 8 hereof, WESCO’s direct or if the Executive is receiving Severance Payments in accordance with Section 9(c) or payments under Section 9(d), then for a period of one (1) year following the date of termination the Executive indirect subsidiaries.
c. Employee shall not (1) provide any servicesdisparage, directly or indirectly, to any other business or commercial entity in the Company’s Field of Interest (as defined in Section 12), (2) solicit any customers or suppliers of the Company, (3) attempt to persuade or encourage customers or suppliers of the Company not to do business with the Company and/or to do business with a competitor of the Company, (4) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field of Interest, or (5) directly or indirectly employ, or seek to employ or secure the services in any capacity of, any person employed at that time by the Company or any of its Affiliatesmalign, or otherwise encourage say or entice any such person do anything which is intended to leave such employment; provided, however, that nothing contained in this Section 5(b) shall or could reasonably be deemed expected to prohibit adversely affect the Executive from acquiring, solely as an investment, shares reputation and standing of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interests). This Section 5(b) shall be subject to written waivers, which may be obtained by the Executive from the CompanyWESCO.
(c) At no time during the Term d. Employee acknowledges that a breach of this Agreement or thereafter will the Executive knowingly make any written or oral untrue statement or any statement that disparages the Company or its Affiliates or will the Company knowingly make any written or oral untrue statement or any statement that disparages the Executive.
(d) If the Executive commits a breach, or threatens to commit a breach, of any of the provisions of this Section 5, the Company shall have the right and remedy to have the provisions of this Agreement, as the case may be, specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide an adequate remedy to the Company.
(e) If any of the covenants contained in this Section Sections 4 or 5 may result in material, irreparable injury to WESCO for which there is no adequate remedy at law, that it shall not be possible to measure damages for such injuries precisely and that, in the event of such a breach or threat of breach, WESCO shall be entitled to obtain a temporary restraining order and/or a preliminary or permanent injunction restraining Employee from engaging in activities prohibited by Sections 4 or 5 or any part hereof or thereof, is hereafter construed such other relief as may be required to be invalid, illegal or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to specifically enforce such substituted covenant(s). Subject to the foregoing, the invalidity, illegality or unenforceability of any one or more of the covenants contained in this Section 5 shall not affect the validity of any other provision hereof, which shall be given full effect without regard to the invalid portions.
(f) If any of the covenants contained in this Section Sections 4 or 5, or any part hereof or thereof, is held to be unenforceable because of the duration of such provision, the area covered thereby or . To the extent thereofthat WESCO seeks a temporary restraining order (but not a preliminary of permanent injunction), the parties agree Employee agrees that the tribunal making such determination shall have the power, and hereby is directed, to reduce the duration, area and/or extent of such provision and, in its reduced form, such provision shall then a temporary restraining order may be enforceable.
(g) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 A upon the courts of any state within the geographical scope of such covenantsobtained ex parte. In the event that Employee is found to have breached any provision set forth in Sections 4 or 5, the courts time period provided for in that provision shall be deemed tolled (i.e., it will not begin or continue to run) for so long as Employee was in violation of any one or more of such states shall hold that provision.
e. The parties consider the covenants and restrictions contained in Sections 4 and 5 to be reasonable. However, if and when any such covenant wholly or restriction is found to be void or unenforceable by reason and would have been valid had some part of it been deleted or had its scope of application been modified, such covenant or restriction shall be deemed to have been applied with such modification as would be necessary and consistent with the breadth of such scope or otherwise, it is the intention intent of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state within the geographical scope of such other covenantshave made it valid, as to breaches of such covenants in such other jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse enforceable and independent covenantseffective.
Appears in 1 contract
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During the Term, the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity without the consent of the Board or (2) participate in the formation of any business or commercial entity without the consent of the Boardentity; provided, however, that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two percent (2%) % of such corporation’s (or other entity’s) then-then outstanding shares of capital stock (or other interestsand provided, further, that nothing contained herein shall be deemed to limit the Executive’s Permitted Activities pursuant to Section 1(d).
(b) If this Agreement the Executive is terminated by the Company for Cause (as defined in Section 6(c)) or if the Executive terminates this Agreement other than in accordance with Section 7 following a Constructive Termination or for Good Reason under Section 8 hereof, or then for a period of one year following the date of termination or, if the Executive is receiving receives Severance Payments in accordance with Section 9(c) ), or payments under Section 9(d), then for a the period of one (1) year following the date of termination such Severance Payments or payments are received, the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity in the Company’s Field of Interest (as defined in Section 1214), (2) solicit any customers or suppliers of the Company, (3) attempt to persuade or encourage customers or suppliers of the Company not to do business with the Company and/or to do business with a competitor of the Company, (4) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field of Interest, or (53) directly or indirectly employ, or seek to employ or secure the services in any capacity of, any person employed at that time by the Company or any of its Affiliates, or otherwise encourage or entice any such person to leave such employment; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) % of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interestsand provided, further, that nothing contained herein shall be deemed to limit Executive’s Permitted Activities pursuant to Section 1(d). This Section 5(b) shall be subject to written waivers, which waivers that may be obtained by the Executive from the Company.
(c) At no time during the Term of this Agreement or thereafter will the Executive knowingly make any written or oral untrue statement or any statement that disparages the Company or its Affiliates in communications with any customer, client or will the Company knowingly make any written or oral untrue statement or any statement that disparages the Executivepublic.
(d) If the Executive commits a breach, or threatens to commit a breach, of any of the provisions of this Section 55 or Exhibit A, the Company shall have the right and remedy to have the provisions of this Agreement, as the case may be, Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide an adequate remedy to the Company.
(e) If any of the covenants contained in this Section 5 or Appendix A, or any part hereof or thereof, is hereafter construed to be invalid, illegal invalid or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoingunenforceable, the invalidity, illegality or unenforceability of any one or more of the covenants contained in this Section 5 same shall not affect the validity remainder of any other provision hereofthe covenant or covenants, which shall be given full effect without regard to the invalid portions.
(f) If any of the covenants contained in this Section 55 or Appendix A, or any part hereof or thereof, is held to be unenforceable because of the duration of such provision, provision or the area covered thereby or the extent thereofthereby, the parties agree that the tribunal court making such determination shall have the power, and hereby is directed, power to reduce the duration, duration and/or area and/or extent of such provision and, in its reduced form, such provision shall then be enforceable.
(g) Anything else contained in this Agreement to the contrary notwithstanding, the The parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 and Appendix A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state states within the geographical scope of such other covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During the Term, the Executive Employee shall not (1) provide any services, directly or indirectly, to any other business or commercial entity without the consent of the Board of Directors, such consent not to be unreasonably withheld, or (2) participate in the formation of any business or commercial entity without the consent of the BoardBoard of Directors, such consent not to be unreasonably withheld; provided, however, that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive Employee from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two percent (2%) % of such corporation’s (or other entity’s) then-then outstanding shares of capital stock (or other interestsand provided, further, that nothing contained herein shall be deemed to limit the Employee’s Permitted Activities pursuant to Section 1(d).
(b) If this Agreement the Employee is terminated by the Company for Cause (as defined in Section 6(c)) or if the Executive Employee terminates this Agreement other than in accordance with Section 7 following a Constructive Termination or for Good Reason under Section 8 hereof, or if the Executive is receiving Severance Payments in accordance with Section 9(c) or payments under Section 9(d), then for a period of one (1) year following the date of termination or, if the Executive Employee receives Severance Payments in accordance with Sections 9(c) or Section 9(d), then for the period such Severance Payments are received, the Employee shall not anywhere in the United States (1) provide any services, directly or indirectly, to any other business or commercial entity services in the Company’s Field of Interest (as defined in Section 1214), directly or indirectly, to any other business or commercial entity, (2) solicit any customers or suppliers of the Company, (3) attempt to persuade or encourage customers or suppliers of the Company not to do business with the Company and/or to do business with a competitor of the Company, (4) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field of Interest, or (53) directly or indirectly employ, or seek to employ or secure the services in any capacity of, any person employed at that time by the Company or any of its Affiliates, or otherwise encourage or entice any such person to leave such employment, or solicit or encourage any customer, consultant, independent contractor, or vendor of the Company to terminate or diminish its relationship with the Company; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive Employee from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) % of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interestsand provided, further, that nothing contained herein shall be deemed to limit Employee’s Permitted Activities pursuant to Section 1(d). This Section 5(b) shall be subject to written waivers, which waivers that may be obtained by the Executive Employee from the Company.
(c) At no time during the Term of this Agreement or thereafter will the Executive Employee knowingly make any written or oral verbal untrue statement or any statement that disparages the Company or its Affiliates in communications with any customer, client or will the Company knowingly make any written or oral untrue statement or any statement that disparages the Executivepublic.
(d) If the Executive Employee commits a breach, or threatens to commit a breach, of any of the provisions of this Section 55 or Exhibit A, the Company shall have the right and remedy to have the provisions of this Agreement, as the case may be, Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will may not provide an adequate remedy to the Company. The Employee therefore agrees that the Company, in addition to any other remedies available to it, shall be entitled to preliminary and permanent injunctive relief against any breach or threatened breach by the Employee of any of the provisions of this Section 5 or Appendix A, without having to post bond.
(e) If any of the covenants contained in this Section 5 or Appendix A, or any part hereof or thereof, is hereafter construed to be invalid, illegal invalid or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoingunenforceable, the invalidity, illegality or unenforceability of any one or more of the covenants contained in this Section 5 same shall not affect the validity remainder of any other provision hereofthe covenant or covenants, which shall be given full effect without regard to the invalid portions.
(f) If any of the covenants contained in this Section 55 or Appendix A, or any part hereof or thereof, is held to be unenforceable because of the duration or scope of such provision, provision or the area covered thereby or the extent thereofthereby, the parties agree that the tribunal court making such determination shall have the power, and hereby is directed, power to reduce the duration, duration and/or area and/or extent of such provision and, in its reduced form, such provision shall then be enforceable.
(g) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state states within the geographical scope of such other covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During In view of the Termunique and valuable services rendered and to be rendered by Executive to the Company, Executive’s knowledge of the trade secrets and other proprietary information relating to the business of the Company or any of its subsidiaries or affiliates (collectively, the Executive shall not (1“G-III Group”) provide any services, directly or indirectly, to any other business or commercial entity without the consent and in consideration of the Board or (2) participate in the formation of any business or commercial entity without the consent of the Board; providedcompensation to be received hereunder, however, Executive agrees that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two percent (2%) of such corporation’s (or other entity’s) then-outstanding shares of capital stock (or other interests).
(b) If this Agreement is terminated during his employment by the Company for Cause (as defined in Section 6(c)) or if the Executive terminates this Agreement other than in accordance with Section 7 or 8 hereof, or if the Executive is receiving Severance Payments in accordance with Section 9(c) or payments under Section 9(d), then and for a period of one (1) year following the date termination of Executive’s employment hereunder or, if Executive becomes entitled to severance benefits under Section 5(f), for a period of two (2) years following the termination of Executive’s employment hereunder (in either event, the “Non-Competition Period”), Executive shall not (1) provide any servicesnot, whether for compensation or without compensation, directly or indirectly, to as an owner, principal, partner, member, shareholder, employee, independent contractor, consultant, joint venturer, investor, licensor, licensee, lender or in any other business capacity whatsoever, alone, or commercial entity in association with any other person, carry on, be engaged or take part in, or render services (other than services which are generally offered to third parties) or advice to, own, share in the Company’s Field of Interest (as defined in Section 12)earnings of, (2) solicit any customers or suppliers of the Company, (3) attempt to persuade or encourage customers or suppliers of the Company not to do business with the Company and/or to do business with a competitor of the Company, (4) participate invest in the formation of stocks, bonds or other securities of, or otherwise become financially interested in, any business entity or commercial entity person engaged primarily in the Company’s Field of Interest, or (5) directly or indirectly employ, or seek to employ or secure the services in any capacity of, business (x) that is in competition with any person employed at that time business engaged in by the G-III Group during the term of Executive’s employment by the Company and (y) that is conducted (including by virtue of having its products sold) in any country in which the G-III Group conducts its business (including by virtue of having its products sold) during the term of Executive’s employment . The record or beneficial ownership by Executive of up to the lesser of (i) $400,000 or (ii) 1.0% of the shares of any corporation whose shares are publicly traded on a national securities exchange or in the over-the-counter market shall not of itself constitute a breach hereunder. In addition, Executive shall not, directly or indirectly, during the Non-Competition Period (other than in connection with the good faith performance of his duties while employed by the Company), request or cause any customers, suppliers, licensees or licensors with whom the G-III Group has a business relationship to cancel or terminate any such business relationship with any member of the G-III Group or solicit, interfere with, entice from or hire from any member of the G-III Group any employee of any member of the G-III Group. The Executive, during the Employment Term and at all times thereafter, shall not make any derogatory comment concerning the G-III Group or any of its Affiliatescurrent or former directors, officers, stockholders or employees. Similarly, the then-current members of the Company’s senior management shall not make any derogatory comment concerning the Executive. Notwithstanding the foregoing, neither of the preceding two sentences will prevent any person from making statements required by applicable law or legal process, to enforce their rights in the course of a judicial, arbitral, or otherwise encourage regulatory proceeding, or entice within the G-III Group (or to the G-III Group’s professional advisors) on a reasonable “need-to-know” basis.
(b) If any such person to leave such employment; provided, however, that nothing contained portion of the restrictions set forth in this Section 5(b) shall 7 should, for any reason whatsoever, be deemed to prohibit declared invalid by a court of competent jurisdiction, the Executive from acquiring, solely as an investment, shares validity or enforceability of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) remainder of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interests). This Section 5(b) restrictions shall not thereby be subject to written waivers, which may be obtained by the Executive from the Companyadversely affected.
(c) At no time during Executive acknowledges that the Term provisions of this Agreement or thereafter will the Executive knowingly make any written or oral untrue statement or any statement that disparages Section 7 were a material inducement to the Company or its Affiliates or will to enter into this Agreement, and that the Company knowingly make would not enter into this Agreement but for the agreements and covenants contained herein. Executive further acknowledges that the limitations set forth in this Section 7 are reasonable and properly required for the adequate protection of the business of the G-III Group. Executive hereby waives, to the extent permitted by law, any written and all right to contest the validity of this Section 7 on the grounds of breadth of its geographic or oral untrue statement product or service coverage or length of term. In the event any statement that disparages such limitation hereunder is deemed to be unreasonable by a court of competent jurisdiction, Executive agrees to the Executivereduction of the territorial or time limitation to the area or time period which such court shall deem reasonable.
(d) If the Executive commits a breach, or threatens to commit a breach, of any of the provisions of this Section 5, the Company shall have the right and remedy to have the provisions of this Agreement, as the case may be, specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide an adequate remedy to the Company.
(e) If any of the covenants contained in this Section 5 or any part hereof or thereof, is hereafter construed to be invalid, illegal or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoing, the invalidity, illegality or unenforceability of any one or more of the covenants contained in this Section 5 shall not affect the validity of any other provision hereof, which shall be given full effect without regard to the invalid portions.
(f) If any of the covenants contained in this Section 5, or any part hereof or thereof, is held to be unenforceable because of the duration of such provision, the area covered thereby or the extent thereof, the parties agree that the tribunal making such determination shall have the power, and hereby is directed, to reduce the duration, area and/or extent of such provision and, in its reduced form, such provision shall then be enforceable.
(g) Anything else Nothing contained in this Agreement shall require the Company to the contrary notwithstandingutilize Executive’s services under this Agreement, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right only obligation to Executive being payment of his compensation, benefits and reimbursable expenses under the relief provided above in the courts terms of any other state within the geographical scope of such other covenants, as to breaches of such covenants in such other jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenantsAgreement.
Appears in 1 contract
Samples: Employment Agreement (G Iii Apparel Group LTD /De/)
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During the Term, the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity without the consent of the Board or (2) participate in the formation of any business or commercial entity without the consent of the Board; provided, however, that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two percent (2%) of such corporation’s (or other entity’s) then-outstanding shares of capital stock (or other interests) and, provided further, that nothing contained herein shall be deemed to limit the Executive’s Permitted Activities pursuant to Section 1(e).
(b) If this Agreement is terminated by the Company for Cause (as defined in Section 6(c)) or if the Executive terminates this Agreement other than in accordance with Section 7 or 8 hereof, or if the Executive is receiving Severance Payments in accordance with Section 9(c) or payments under Section 9(d), then for a period of one two (12) year years following the date of termination the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity in the Company’s Field of Interest (as defined in Section 12), (2) solicit any customers or suppliers of the Company, (3) attempt to persuade or encourage customers or suppliers of the Company not to do business with the Company and/or to do business with a competitor of the Company, (4) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field of Interest, or (5) directly or indirectly employ, or seek to employ or secure the services in any capacity of, any person employed at that time by the Company or any of its Affiliates, or otherwise encourage or entice any such person to leave such employment; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interests) and, provided further, that nothing contained herein shall be deemed to limit Executive’s Permitted Activities pursuant to Section 1(e). This Section 5(b) shall be subject to written waivers, which may be obtained by the Executive from the Company.
(c) At no time during the Term of this Agreement or thereafter will the Executive knowingly make any written or oral untrue statement or any statement that disparages the Company or its Affiliates or will the Company knowingly make any written or oral untrue statement or any statement that disparages the Executive.
(d) If the Executive commits a breach, or threatens to commit a breach, of any of the provisions of this Section 55 or Exhibit A, the Company shall have the right and remedy to have the provisions of this AgreementAgreement or Exhibit A, as the case may be, specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide an adequate remedy to the Company.
(e) If any of the covenants contained in this Section 5 or Exhibit A or any part hereof or thereof, is hereafter construed to be invalid, illegal or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoing, the invalidity, illegality or unenforceability of any one or more of the covenants contained in this Section 5 shall not affect the validity of any other provision hereof, which shall be given full effect without regard to the invalid portions.
(f) If any of the covenants contained in this Section 55 or Exhibit A, or any part hereof or thereof, is held to be unenforceable because of the duration of such provision, the area covered thereby or the extent thereof, the parties agree that the tribunal making such determination shall have the power, and hereby is directed, to reduce the duration, area and/or extent of such provision and, in its reduced form, such provision shall then be enforceable.
(g) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 and Exhibit A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state within the geographical scope of such other covenants, as to breaches of such covenants in such other jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Samples: Employment Agreement (Celsion Corp)
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During the Term, the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity without the consent of the Board of Directors, such consent not unreasonably to be withheld, delayed or conditioned, or (2) participate in the formation of any business or commercial entity without the consent of the BoardBoard of Directors, such consent not unreasonably to be withheld, delayed or conditioned; provided, however, that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two percent (2%) of such corporation’s (or other entity’s) then-then outstanding shares of capital stock (or other interestsand, provided, further, that nothing contained herein shall be deemed to limit the Executive’s Permitted Activities pursuant to Section 1(d).
(b) If this Agreement the Executive is terminated by the Company for Cause (as defined in Section 6(c)) or if the Executive terminates this Agreement other than in accordance with Section 7 or 8 hereof, or if the Executive is receiving Severance Payments in accordance with Section 9(c) or payments under Section 9(d9(d)(i), then for a period of one (1) year following the date of termination (or, should the Executive receive Severance Payments in accordance with Sections 9(c) or payments under Section 9(d)), for the period utilized to calculate such Severance Payments or payments under Section 9(c) or Section 9(d)), the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity in the Company’s Field of Interest (as defined in Section 1213), (2) solicit any customers or suppliers of the Company, (3) attempt to persuade or encourage customers or suppliers of the Company not to do business with the Company and/or to do business with a competitor of the Company, (4) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field of Interest, or (5) directly or indirectly employ, or seek to employ or secure the services in any capacity of, any person employed at that time by the Company or any of its Affiliates, or otherwise encourage or entice any such person to leave such employment; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interests) and provided, further, that nothing contained herein shall be deemed to limit Executive’s Permitted Activities pursuant to Section 1(d). This Section 5(b) shall be subject to written waivers, which may be obtained by the Executive from the Company.
(c) At no time during the Term of this Agreement or thereafter will the Executive knowingly make any written or oral untrue statement or any statement that disparages the Company or its Affiliates in communications with any customer, client or will the Company knowingly make any written or oral untrue statement or any statement that disparages the Executivepublic.
(d) If the Executive commits a breach, or threatens to commit a breach, of any of the provisions of this Section 55 or Exhibit A, the Company shall have the right and remedy to have the provisions of this AgreementAgreement or Exhibit A, as the case may be, specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide an adequate remedy to the Company.
(e) If any of the covenants contained in this Section 5 or Exhibit A or any part hereof or thereof, is hereafter construed to be invalid, illegal invalid or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoingunenforceable, the invalidity, illegality or unenforceability of any one or more of the covenants contained in this Section 5 same shall not affect the validity remainder of any other provision hereofthe covenant or covenants, which shall be given full effect without regard to the invalid portions.
(f) If any of the covenants contained in this Section 55 or Exhibit A, or any part hereof or thereof, is held to be unenforceable because of the duration of such provision, the area covered thereby or the extent thereof, the parties agree that the tribunal making such determination shall have the power, and hereby is directed, power to reduce the duration, area and/or extent of such provision and, in its reduced form, such provision shall then be enforceable.
(g) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 and Exhibit A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state within the geographical scope of such other covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Samples: Employment Agreement (Celsion Corp)
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During the Term, the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity without the consent of the Board of Directors, such consent not to be unreasonably withheld, or (2) participate in the formation of any business or commercial entity without the consent of the BoardBoard of Directors, such consent not to be unreasonably withheld; provided, however, that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two percent (2%) % of such corporation’s (or other entity’s) then-then outstanding shares of capital stock (or other interestsand provided, further, that nothing contained herein shall be deemed to limit the Executive’s Permitted Activities pursuant to Section 1(d).
(b) If this Agreement the Executive is terminated by the Company for Cause (as defined in Section 6(c)) or if the Executive terminates this Agreement other than in accordance with Section 7 following a Constructive Termination or for Good Reason under Section 8 hereof, or if the Executive is receiving Severance Payments in accordance with Sections 9(c)or payments under Section 9(d)(i), then for a period of one year following the date of termination (or, should the Executive receive Severance Payments in accordance with Sections 9(c) or payments under Section 9(d), then for a the period of one (1utilized to calculate such Severance Payments or payments under Section 9(c) year following the date of termination or Section 9(d)), the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity in the Company’s Field of Interest (as defined in Section 1214), (2) solicit any customers or suppliers of the Company, (3) attempt to persuade or encourage customers or suppliers of the Company not to do business with the Company and/or to do business with a competitor of the Company, (4) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field of Interest, or (53) directly or indirectly employ, or seek to employ or secure the services in any capacity of, any person employed at that time by the Company or any of its Affiliates, or otherwise encourage or entice any such person to leave such employment; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) % of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interestsand provided, further, that nothing contained herein shall be deemed to limit Executive’s Permitted Activities pursuant to Section 1(d). This Section 5(b) shall be subject to written waivers, which waivers that may be obtained by the Executive from the Company.
(c) At no time during the Term of this Agreement or thereafter will the Executive knowingly make any written or oral untrue statement or any statement that disparages the Company or its Affiliates in communications with any customer, client or will the Company knowingly make any written or oral untrue statement or any statement that disparages the Executivepublic.
(d) If the Executive commits a breach, or threatens to commit a breach, of any of the provisions of this Section 55 or Exhibit A, the Company shall have the right and remedy to have the provisions of this Agreement, as the case may be, Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide an adequate remedy to the Company.
(e) If any of the covenants contained in this Section 5 or Appendix A, or any part hereof or thereof, is hereafter construed to be invalid, illegal invalid or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoingunenforceable, the invalidity, illegality or unenforceability of any one or more of the covenants contained in this Section 5 same shall not affect the validity remainder of any other provision hereofthe covenant or covenants, which shall be given full effect without regard to the invalid portions.
(f) If any of the covenants contained in this Section 55 or Appendix A, or any part hereof or thereof, is held to be unenforceable because of the duration of such provision, provision or the area covered thereby or the extent thereofthereby, the parties agree that the tribunal court making such determination shall have the power, and hereby is directed, power to reduce the duration, duration and/or area and/or extent of such provision and, in its reduced form, such provision shall then be enforceable.
(g) Anything else contained in this Agreement to the contrary notwithstanding, the The parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 and Appendix A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state states within the geographical scope of such other covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Non-Competition, Non-Solicitation and Non-Disparagement. (a) [THE COVENANT AGAINST COMPETITION PREVIOUSLY CONTAINED IN THIS PARAGRAPH 6(a) IS STRICKEN AS PER SECTION 5(C) OF THE PARTIES’ SEPARATION AND GENERAL RELEASE AGREEMENT DATED December 21, 2007.]
(b) During the TermTerm and for a period of 18 months thereafter, the Executive Employee shall not (1) provide any servicesnot, directly or indirectly, to any other business or commercial entity without the prior written consent of the Board or (2) participate in the formation of any business or commercial entity without the consent of the Board; provided, however, that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two percent (2%) of such corporation’s (or other entity’s) then-outstanding shares of capital stock (or other interests).Company:
(b) If this Agreement is terminated by the Company for Cause (as defined in Section 6(c)) or if the Executive terminates this Agreement other than in accordance with Section 7 or 8 hereof, or if the Executive is receiving Severance Payments in accordance with Section 9(c) or payments under Section 9(d), then for a period of one (1) year following the date of termination the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity in the Company’s Field of Interest (as defined in Section 12), (2i) solicit or induce any customers or suppliers of the Company, (3) attempt to persuade or encourage customers or suppliers employee of the Company not or any of its affiliates to do business leave the employ of the Company or any such affiliate; or hire for any purpose any employee of the Company or any affiliate or any employee who has left the employment of the Company or any affiliate within one year of the termination of such employee’s employment with the Company and/or to do business with a competitor or any such affiliate [Remainder of sentence deleted.]; or
(ii) solicit or accept employment or be retained by any Person who, at any time during the term of this Agreement, was an agent, client or customer of the Company, Company or any of its affiliates where his position will be related to the business of the Company or any such affiliate; or
(4iii) participate in solicit or accept the formation business of any business agent, client or commercial entity engaged primarily in customer of the Company’s Field Company or any of Interestits affiliates with respect to products, services or (5) directly investments similar to those provided or indirectly employ, or seek to employ or secure the services in any capacity of, any person employed at that time supplied by the Company or any of its Affiliates, or otherwise encourage or entice any such person to leave such employment; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interests). This Section 5(b) shall be subject to written waivers, which may be obtained by the Executive from the Companyaffiliates.
(c) At no time The Company and the Employee each agree that both during the Term and at all times thereafter, neither party shall directly or indirectly disparage, whether or not true, the name or reputation of this Agreement or thereafter will the Executive knowingly make any written or oral untrue statement other party or any statement that disparages of its affiliates, including but not limited to, any officer, director, employee or shareholder of the Company or any of its Affiliates or will the Company knowingly make any written or oral untrue statement or any statement that disparages the Executiveaffiliates.
(d) If In the Executive commits event that the Employee breaches any provisions of Section 5 or this Section 6 or there is a threatened breach, then, in addition to any other rights which the Company may have, the Company shall (i) be entitled, without the posting of a bond or threatens other security, to commit injunctive relief to enforce the restrictions contained in such Sections and (ii) have the right to require the Employee to account for and pay over to the Company all compensation, profits, monies, accruals, increments and other benefits (collectively “Benefits”) derived or received by the Employee as a breachresult of any transaction constituting a breach of any of the provisions of Sections 5 or 6 and the Employee hereby agrees to account for and pay over such Benefits to the Company. The Employee agrees that in an action pursuant to clause 6(d)(i), of that if the Company makes a prima facie showing that the Employee has violated or apparently intends to violate any of the provisions of this Section 56, the Company shall have the right and remedy to have the provisions of this Agreement, as the case may be, specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach need not prove either damage or threatened breach will cause irreparable injury in order to the Company and that money damages will not provide an adequate remedy to the Companyobtain injunctive relief.
(e) Each of the rights and remedies enumerated in Section 6(d) shall be independent of the others and shall be in addition to and not in lieu of any other rights and remedies available to the Company at law or in equity. If any of the covenants contained in this Section 5 6, or any part hereof or thereofof any of them, is hereafter construed or adjudicated to be invalid, illegal invalid or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoingunenforceable, the invalidity, illegality or unenforceability of any one or more of the covenants contained in this Section 5 same shall not affect the validity remainder of any other provision hereof, the covenant or covenants or rights or remedies which shall be given full effect without regard to the invalid portions.
(f) . If any of the covenants contained in this Section 5, or any part hereof or thereof, 6 is held to be invalid or unenforceable because of the duration of such provision, provision or the area covered thereby or the extent thereofthereby, the parties agree that the tribunal court making such determination shall have the power, and hereby is directed, power to reduce the duration, duration and/or area and/or extent of such provision and, and in its reduced form, form such provision shall then be enforceable.
(g) Anything else contained . No such holding of invalidity or unenforceability in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer one jurisdiction to enforce the covenants contained in this Section 5 A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in this Section 6 or otherwise in the courts of any other state or jurisdiction within the geographical scope of such other covenants, covenants as to breaches of such covenants in such other respective states or jurisdictions, the above such covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
(f) In the event that an actual proceeding is brought in equity to enforce the provisions of Section 5 or this Section 6, the Employee shall not urge as a defense that there is an adequate remedy at law nor shall the Company be prevented from seeking any other remedies which may be available. The Employee agrees that he shall not raise in any proceeding brought to enforce the provisions of Section 5 or this Section 6 that the covenants contained in such Sections limit his ability to earn a living.
(g) The provisions of this Section 6 shall survive any termination of this Agreement.
Appears in 1 contract
Samples: Separation and Release Agreement (Manhattan Pharmaceuticals Inc)
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During the Term, the Executive Employee shall not (1) provide any services, directly or indirectly, to any other business or commercial entity without the consent of the Board Company, which may be withheld in the Company’s sole discretion, or (2) participate in the formation of any business or commercial entity without the consent of the Board; Company, which may be withheld in the Company’s sole discretion; provided, however, that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive Employee from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two percent (2%) % of such corporation’s (or other entity’s) then-then outstanding shares of capital stock (or other interestsand provided, further, that nothing contained herein shall be deemed to limit the Employee’s Permitted Activities pursuant to Section 1(b).
(b) If this Agreement is terminated Upon (i) the termination of the Employee’s employment by the Company for Cause (as defined in any reason other than pursuant to Section 6(c)6(a) or if Section 6(b), (ii) the Executive terminates this Agreement other than in accordance with Company’s decision not to renew the Term under Section 7 2 hereof (“Non-Renewal”) or 8 hereof(iii) a termination of the Employee’s employment by the Employee for any reason, following such termination of employment and during the Restricted Period, the Employee shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer, or if otherwise, compete with the Executive is receiving Severance Payments in accordance Company or any of its affiliates, or undertake any planning for any business competitive with Section 9(c) the Company or payments under Section 9(d)any of its affiliates. Specifically, then for a period of one (1) year following but without limiting the date of termination foregoing, during the Executive shall not Restricted Period the Employee will not: (1) provide any services, services directly or indirectly, whether as an employee or independent contractor or otherwise, whether with or without compensation, to any other business or commercial entity in the Company’s Field of Interest (as defined in Section 12), (2) solicit United States that is competitive with all or any customers or suppliers portion of the Company, (3) attempt to persuade or encourage customers or suppliers business of the Company not to do business with the Company and/or to do business with a competitor of the Company, or its affiliates; (42) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field United States that is competitive with all or any portion of Interestthe business of the Company or its affiliates, or (53) directly or indirectly employ, or seek to employ or secure the services in any capacity ofemploy, any person employed at that time by the Company or any of its Affiliatesaffiliates anywhere in the world, or otherwise encourage or entice any such person to leave such employment; employment; (4) solicit or encourage any independent contractor providing services to the Company or any of its affiliates anywhere in the world to terminate or diminish its relationship with the Company or its affiliates; or (5) solicit or encourage any customer, consultant, or vendor of the Company or its affiliates, anywhere in the world, to terminate or diminish its relationship with the Company or its affiliates; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive Employee from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) % of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interestsand provided, further, that nothing contained herein shall be deemed to limit Employee’s Permitted Activities pursuant to Section 1(b). This Section 5(b) shall be subject to written waivers, which waivers that may be obtained by the Executive Employee from the Company.
(c) At no time during the Term or thereafter, regardless of this Agreement or thereafter the reason for termination, will the Executive Employee knowingly make any written or oral verbal untrue statement or any statement that disparages the Company, its affiliates, its business, its management, or its products in communications with any customer, client or the public. The Employee will, furthermore, not otherwise do or say anything that could disrupt the good morale of employees of the Company or any of its Affiliates affiliates, or will that xxxxx the interests or reputation of the Company knowingly make any written or oral untrue statement or any statement that disparages the Executiveof its affiliates.
(d) Nothing in this Agreement or the Proprietary Information and Inventions Agreement limits, restricts, or in any other way affects the Employee’s ability to disclose possible violations of law to any governmental agency or entity or to any official or staff person of a governmental agency or entity; nor does any provision in this Agreement or the Proprietary Information and Inventions Agreement require the Employee to seek prior authorization or notify the Company before making any such disclosure.
(e) The Employee acknowledges that he has read and considered all the terms and conditions of this Agreement, including the restraints imposed upon him pursuant to Sections 5(a), 5(b), and 5(c) above. The Employee agrees without reservation that these restraints are necessary for the reasonable and proper protection of the Company and its affiliates, and are reasonable in respect to subject matter, length of time, and geographic area. If the Executive Employee commits a breach, or threatens to commit a breach, of any of the provisions of this Section 5, the Company shall have the right and remedy to have the provisions of this Agreement, as the case may be, Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will may not provide an adequate remedy to the Company.
(e) If . The Employee therefore agrees that the Company, in addition to any other remedies available to it, shall be entitled to preliminary and permanent injunctive relief against any breach or threatened breach by the Employee of any of the provisions of this Section 5, without having to post bond. So that the Company may enjoy the full benefit of the covenants contained in this Section 5 or any part hereof or thereofabove, is hereafter construed to the Employee agrees that the Restricted Period shall be invalid, illegal or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the powertolled, and hereby is directedshall not run, to substitute for or limit such provision(s) in order as closely as possible to effectuate during the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoing, the invalidity, illegality or unenforceability period of any one or more breach by the Employee of the covenants contained in this Section 5 shall not affect the validity of any other provision hereof, which shall be given full effect without regard to the invalid portionssuch covenants.
(f) If any of the covenants contained in this Section 5, or any part hereof thereof, is hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect without regard to the invalid portions.
(g) If any of the covenants contained in this Section 5, or any part thereof, is held to be unenforceable because of the duration or scope of such provision, provision or the area covered thereby or the extent thereofthereby, the parties agree that the tribunal court making such determination shall have the power, and hereby is directed, power to reduce the durationduration and/or area of such provision, and that the parties intend for the court to modify the duration and/or area and/or extent of such provision and, to the maximum extent permitted by law. The parties agree that in its reduced form, such provision shall then be enforceable.
(gh) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state states within the geographical scope of such other covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During the Term, the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity without the consent of the Board of Directors, such consent not unreasonably to be withheld, delayed or conditioned, or (2) participate in the formation of any business or commercial entity without the consent of the BoardBoard of Directors, such consent not unreasonably to be withheld, delayed or conditioned; provided, however, that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two percent (2%) of such corporation’s (or other entity’s) then-then outstanding shares of capital stock (or other interestsand, provided further, that nothing contained herein shall be deemed to limit the Executive’s Permitted Activities pursuant to Section 1(d).
(b) If this Agreement the Executive is terminated by the Company for Cause (as defined in Section 6(c)) or if the Executive terminates this Agreement other than in accordance with Section 7 or 8 hereof, or if the Executive is receiving Severance Payments in accordance with Section Sections 9(c) or payments under Section 9(d9(d)(i), then for a period of one (1) year following the date of termination (or, should the Executive receive Severance Payments in accordance with Sections 9(c) or payments under Section 9(d), for the period utilized to calculate such Severance Payments or payments under Section 9(c) or Section 9(d)), the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity in the Company’s Field of Interest (as defined in Section 1213), (2) solicit any customers or suppliers of the Company, (3) attempt to persuade or encourage customers or suppliers of the Company not to do business with the Company and/or to do business with a competitor of the Company, (4) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field of Interest, or (5) directly or indirectly employ, or seek to employ or secure the services in any capacity of, any person employed at that time by the Company or any of its Affiliates, or otherwise encourage or entice any such person to leave such employment; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interests) and, provided further, that nothing contained herein shall be deemed to limit Executive’s Permitted Activities pursuant to Section 1(d). This Section 5(b) shall be subject to written waivers, which may be obtained by the Executive from the Company.
(c) At no time during the Term of this Agreement or thereafter will the Executive knowingly make any written or oral untrue statement or any statement that disparages the Company or its Affiliates in communications with any customer, client or will the Company knowingly make any written or oral untrue statement or any statement that disparages the Executivepublic.
(d) If the Executive commits a breach, or threatens to commit a breach, of any of the provisions of this Section 55 or Exhibit A, the Company shall have the right and remedy to have the provisions of this AgreementAgreement or Exhibit A, as the case may be, specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide an adequate remedy to the Company.
(e) If any of the covenants contained in this Section 5 or Exhibit A, or any part hereof or thereof, is hereafter construed to be invalid, illegal invalid or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoingunenforceable, the invalidity, illegality or unenforceability of any one or more of the covenants contained in this Section 5 same shall not affect the validity remainder of any other provision hereofthe covenant or covenants, which shall be given full effect without regard to the invalid portions.
(f) If any of the covenants contained in this Section 55 or Exhibit A, or any part hereof or thereof, is held to be unenforceable because of the duration of such provision, the area covered thereby or the extent thereof, the parties agree that the tribunal making such determination shall have the power, and hereby is directed, power to reduce the duration, area and/or extent of such provision and, in its reduced form, such provision shall then be enforceable.
(g) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 and Exhibit A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state within the geographical scope of such other covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Samples: Employment Agreement (Celsion Corp)
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During The Executive understands and recognizes that his services to the Term, Company are special and unique and that in the course of performing such services the Executive will have access to and knowledge of Confidential and Proprietary Information (as defined in Section 6) and the Executive agrees that, during the Term and for a period of twelve (12) months thereafter (subject to the provisions of Section 10(e) hereof), he shall not (1) provide without the consent of the Company in any servicesmanner, directly or indirectly, to on behalf of himself or any person, firm, partnership, joint venture, corporation or other business entity (“Person”), enter into or commercial entity without engage in any business which is engaged in any business directly or indirectly competitive with the consent Company’s Business (as defined below), either as an individual for his own account, or as a partner, joint venturer, owner, executive, employee, independent contractor, principal, agent, consultant, salesperson, officer, director or shareholder of a Person in a business competitive with the Company within the geographic area of the Board Company’s Business, which is deemed by the parties hereto to be worldwide. The Executive acknowledges that, due to the nature of the Company’s Business, and the importance to the Company’s Business of its Confidential and Proprietary Information, a violation of this Section 7(a) could cause substantial damage to the Company and its affiliates and, therefore, the Company has a strong legitimate business interest in protecting the continuity of its business interests and the restriction herein agreed to by the Executive narrowly and fairly serves such an important and critical business interest of the Company. For purposes of this Agreement, the “Company’s Business” shall mean the business or (2) participate in businesses set forth on the formation attached Schedule 7(a), which shall be amended from time to time upon the mutual written agreement of the parties, but which will automatically include the research, development and commercialization of any business technologies that are licensed or commercial entity without otherwise acquired by the consent of Company. Notwithstanding the Board; providedforegoing, however, that nothing contained in this Section 5(a7(a) shall be deemed to prohibit the Executive from acquiring(i) acquiring or holding, solely as an for investment, shares publicly traded securities of capital stock any corporation, some or all of the activities of which are competitive with the business of the Company so long as such securities do not, in the aggregate, constitute more than three percent (or other interests3%) of any corporation (class or other entity) not exceeding two percent (2%) series of outstanding securities of such corporation’s (or other entity’s) then-outstanding shares of capital stock (or other interests).
(b) If this Agreement is terminated by the Company for Cause (as defined in Section 6(c)) or if the Executive terminates this Agreement other than in accordance with Section 7 or 8 hereof, or if the Executive is receiving Severance Payments in accordance with Section 9(c) or payments under Section 9(d), then for a period of one (1) year following the date of termination the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity in the Company’s Field of Interest (as defined in Section 12), (2) solicit any customers or suppliers of the Company, (3) attempt to persuade or encourage customers or suppliers of the Company not to do business with the Company and/or to do business with a competitor of the Company, (4) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field of Interest, or (5) directly or indirectly employ, or seek to employ or secure the services in any capacity of, any person employed at that time by the Company or any of its Affiliates, or otherwise encourage or entice any such person to leave such employment; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interests). This Section 5(b) shall be subject to written waivers, which may be obtained by the Executive from the Company.
(c) At no time during the Term of this Agreement or thereafter will the Executive knowingly make any written or oral untrue statement or any statement that disparages the Company or its Affiliates or will the Company knowingly make any written or oral untrue statement or any statement that disparages the Executive.
(d) If the Executive commits a breach, or threatens to commit a breach, of any of the provisions of this Section 5, the Company shall have the right and remedy to have the provisions of this Agreement, as the case may be, specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide an adequate remedy to the Company.
(e) If any of the covenants contained in this Section 5 or any part hereof or thereof, is hereafter construed to be invalid, illegal or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoing, the invalidity, illegality or unenforceability of any one or more of the covenants contained in this Section 5 shall not affect the validity of any other provision hereof, which shall be given full effect without regard to the invalid portions.
(f) If any of the covenants contained in this Section 5, or any part hereof or thereof, is held to be unenforceable because of the duration of such provision, the area covered thereby or the extent thereof, the parties agree that the tribunal making such determination shall have the power, and hereby is directed, to reduce the duration, area and/or extent of such provision and, in its reduced form, such provision shall then be enforceable.
(g) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state within the geographical scope of such other covenants, as to breaches of such covenants in such other jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During the Term, the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity without the consent of the Board or (2) participate in the formation of any business or commercial entity without the consent of the Boardentity; provided, however, that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two percent (2%) % of such corporation’s (or other entity’s) then-then outstanding shares of capital stock (or other interestsand provided, further, that nothing contained herein shall be deemed to limit the Executive’s Permitted Activities pursuant to Section 1(d).
(b) If this Agreement the Executive is terminated by the Company for Cause (as defined in Section 6(c)) or if the Executive terminates this Agreement other than in accordance with Section 7 following a Constructive Termination or for Good Reason under Section 8 hereof, or if the Executive is receiving Severance Payments in accordance with Section 9(c) or payments under Section 9(d), then for a period of one (1) year following the date of termination (or, should the Executive receive Severance Payments in accordance with Section 9(c) or payments under Section 9(d), for the period utilized to calculate such Severance Payments under Section 9(c) or payments under Section 9(d)), the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity in the Company’s Field of Interest (as defined in Section 1214), (2) solicit any customers or suppliers of the Company, (3) attempt to persuade or encourage customers or suppliers of the Company not to do business with the Company and/or to do business with a competitor of the Company, (4) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field of Interest, or (53) directly or indirectly employ, or seek to employ or secure the services in any capacity of, any person employed at that time by the Company or any of its Affiliates, or otherwise encourage or entice any such person to leave such employment; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) % of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interestsand provided, further, that nothing contained herein shall be deemed to limit Executive’s Permitted Activities pursuant to Section 1(d). This Section 5(b) shall be subject to written waivers, which waivers that may be obtained by the Executive from the Company.
(c) At no time during the Term of this Agreement or thereafter will the Executive knowingly make any written or oral untrue statement or any statement that disparages the Company or its Affiliates in communications with any customer, client or will the Company knowingly make any written or oral untrue statement or any statement that disparages the Executivepublic.
(d) If the Executive commits a breach, or threatens to commit a breach, of any of the provisions of this Section 55 or Exhibit A, the Company shall have the right and remedy to have the provisions of this Agreement, as the case may be, Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide an adequate remedy to the Company.
(e) If any of the covenants contained in this Section 5 or Appendix A, or any part hereof or thereof, is hereafter construed to be invalid, illegal invalid or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoingunenforceable, the invalidity, illegality or unenforceability of any one or more of the covenants contained in this Section 5 same shall not affect the validity remainder of any other provision hereofthe covenant or covenants, which shall be given full effect without regard to the invalid portions.
(f) If any of the covenants contained in this Section 55 or Appendix A, or any part hereof or thereof, is held to be unenforceable because of the duration of such provision, provision or the area covered thereby or the extent thereofthereby, the parties agree that the tribunal court making such determination shall have the power, and hereby is directed, power to reduce the duration, duration and/or area and/or extent of such provision and, in its reduced form, such provision shall then be enforceable.
(g) Anything else contained in this Agreement to the contrary notwithstanding, the The parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 and Appendix A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state states within the geographical scope of such other covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During You covenant and agree that Section 6 of your Employment Agreement survives termination of the TermEmployment Agreement and the Term hereof to the following extent. You covenant and agree that during the Term and for a period of twelve (12) months thereafter, you will not, on behalf of yourself or any person, firm, partnership, joint venture, corporation or other business entity (“Person”), directly or indirectly enter into or engage in any business which is engaged in any business directly competitive with the business of the Company, either as an individual for your own account, or as a partner, joint venturer, owner, executive, employee, independent contractor, principal, agent, consultant, salesperson, officer, director or shareholder of a Person in a business competitive with the Company within the geographic area of the Company’s business, which you agree is deemed to be worldwide For purposes of this Agreement, the Executive Company shall be deemed to be actively engaged on the date hereof in the development of novel application oral drug delivery systems for presently marketed prescription and over-the-counter drugs where such drug is a small molecule, non-biologic, and providing consulting services in connection therewith, and in the future in any other business in which it actually devotes substantive resources to study, develop or pursue. For the sake of clarity, you will not be in breach of this paragraph 5(a) if you become employed by or consult to a Person whose primary business is outside the area of novel oral drug delivery systems for use with small molecule, non-biologic pharmaceuticals. Notwithstanding the foregoing, nothing contained herein shall be deemed to prohibit you from acquiring or holding, directly or indirectly (1including through membership in a partnership, corporation, limited liability company or other entity in which you recuse yourself from involvement therein), solely for investment, publicly traded securities of any corporation, some or all of the activities of which are competitive with DB1/62813902.4 the business of the Company so long as such securities do not, in the aggregate, constitute more than 4.9% of any class or series of outstanding securities of such corporation.
(b) provide any servicesYou further covenant and agree that during the Term and for twelve (12) months thereafter, you will not, directly or indirectly, to any other business or commercial entity without the prior written consent of the Board Company: (i) solicit or induce any employee of the Company or any of its affiliates to leave the employee of the Company or any such affiliate; or hire for any purpose any employee of the Company or any affiliate or any employee who has left the employment of the Company or any affiliate within one year of the termination of such employee’s employment with the Company or any such affiliate or at any time in violation of such employee’s non-competition agreement with the Company or any such affiliate; or (2) participate in the formation of any business or commercial entity without the consent of the Board; provided, however, that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two percent (2%) of such corporation’s (or other entity’s) then-outstanding shares of capital stock (or other interests).
(b) If this Agreement is terminated by the Company for Cause (as defined in Section 6(c)) or if the Executive terminates this Agreement other than in accordance with Section 7 or 8 hereof, or if the Executive is receiving Severance Payments in accordance with Section 9(c) or payments under Section 9(d), then for a period of one (1) year following the date of termination the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity in the Company’s Field of Interest (as defined in Section 12), (2ii) solicit or accept employment or be retained by any customers or suppliers of Person who, at any time during your employment with the Company, (3) attempt to persuade was an agent, client or encourage customers or suppliers customer of the Company not or any of its affiliates where your position will be related to do the business with of the Company and/or to do of any such affiliate; or (iii) solicit or accept the business with a competitor of any agent, client or customer of the CompanyCompany or any of its affiliates with respect to products, (4) participate in the formation of any business services or commercial entity engaged primarily in the Company’s Field of Interest, investments similar to those provided or (5) directly or indirectly employ, or seek to employ or secure the services in any capacity of, any person employed at that time supplied by the Company or any of its Affiliates, or otherwise encourage or entice any such person to leave such employment; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interests). This Section 5(b) shall be subject to written waivers, which may be obtained by the Executive from the Companyaffiliates.
(c) At no time during You further covenant and agree that you will not directly or indirectly disparage, whether or not true, the Term name or reputation of this Agreement or thereafter will the Executive knowingly make any written or oral untrue statement or any statement that disparages the Company or any of its Affiliates affiliates, including but not limited to, any officer, director, employee or will shareholder of the Company knowingly make any written or oral untrue statement or any statement that disparages the Executiveof its affiliates.
(d) If the Executive commits a breach, or threatens to commit a breach, of any of the provisions of this Section 5, the Company shall have the right and remedy to have the provisions of this Agreement, as the case may be, specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide an adequate remedy to the Company.
(e) If any of the covenants contained in this Section 5 or any part hereof or thereof, is hereafter construed to be invalid, illegal or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoing, the invalidity, illegality or unenforceability of any one or more of the covenants contained in this Section 5 shall not affect the validity of any other provision hereof, which shall be given full effect without regard to the invalid portions.
(f) If any of the covenants contained in this Section 5, or any part hereof or thereof, is held to be unenforceable because of the duration of such provision, the area covered thereby or the extent thereof, the parties agree that the tribunal making such determination shall have the power, and hereby is directed, to reduce the duration, area and/or extent of such provision and, in its reduced form, such provision shall then be enforceable.
(g) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state within the geographical scope of such other covenants, as to breaches of such covenants in such other jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Samples: Separation, Consulting and General Release Agreement (Novadel Pharma Inc)
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During the Term, the Executive Employee shall not (1) provide any services, directly or indirectly, to any other business or commercial entity without the consent of the Board Company, which may be withheld in the Company’s sole discretion, or (2) participate in the formation of any business or commercial entity without the consent of the BoardCompany, which may be withheld in the Company’s sole discretion; provided, however, that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive Employee from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two percent (2%) % of such corporation’s (or other entity’s) then-then outstanding shares of capital stock (and provided, further, that nothing contained herein shall be deemed to limit the Employee’s Permitted Activities pursuant to Section 1(b) or other interestsability to serve on an outside board of directors under Section 1(c).
(b) If this Agreement is terminated Upon a termination of the Employee’s employment by the Company for Cause (as defined in any reason other than pursuant to Section 6(c)6(a) or if the Executive terminates this Agreement other than in accordance with Section 7 or 8 hereof6(b), or if upon a termination of the Executive is receiving Severance Payments in accordance Employee’s employment by the Employee for any reason, following such termination of employment and during the Restricted Period, the Employee shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer, or otherwise, compete with Section 9(c) the Company or payments under Section 9(dany of its Affiliates, or undertake any planning for any business competitive with the Company or any of its Affiliates (a “Competing Organization”). Specifically, then for a period of one (1) year following but without limiting the date of termination foregoing, during the Executive shall not Restricted Period the Employee will not: (1) provide any services, services directly or indirectly, whether as an employee or independent contractor or otherwise, whether with or without compensation, to any other business or commercial entity in the Company’s Field of Interest (as defined in Section 12), (2) solicit United States that is competitive with all or any customers or suppliers portion of the Company, (3) attempt to persuade or encourage customers or suppliers business of the Company not to do business with the Company and/or to do business with a competitor of the Company, or its Affiliates; (42) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field United States that is competitive with all or any portion of Interestthe business of the Company or its Affiliates, or (53) directly or indirectly employ, or seek to employ or secure the services in any capacity ofemploy, any person employed at that time by the Company or any of its AffiliatesAffiliates anywhere in the world, or otherwise encourage or entice any such person to leave such employment; (4) solicit or encourage any independent contractor providing services to the Company or any of its Affiliates anywhere in the world to terminate or diminish its relationship with the Company or its Affiliates; or (5) solicit or encourage any customer, consultant, or vendor of the Company or its Affiliates anywhere in the world, to terminate or diminish its relationship with the Company or its Affiliates; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive Employee from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) % of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interestsand provided, further, that nothing contained herein shall be deemed to limit Employee’s Permitted Activities pursuant to Section 1(b). This Section 5(b) shall be subject to written waivers, which waivers that may be obtained by the Executive Employee from the Company. For purposes of this Section 5(b), an entity shall be deemed to be a Competing Organization if it is engaged in, or about to become engaged in, research, development, production, distribution, marketing, providing or selling of a product, product candidate, process or service with which the Employee works at any time during his employment with the Company or about which the Employee acquires confidential information through his work with the Company.
(c) At no time during the Term of this Agreement or thereafter thereafter, regardless of the reason for termination, will the Executive Employee knowingly make any written or oral verbal untrue statement or any statement that disparages the Company, its Affiliates, its business, its management, or its products in communications with any customer, client or the public. The employee will, furthermore, not otherwise do or say anything that could disrupt the good morale of employees of the Company or any of its Affiliates Affiliates, or will that xxxxx the interests or reputation of the Company knowingly make any written or oral untrue statement or any statement that disparages the Executiveof its Affiliates.
(d) Nothing in this Agreement or the Proprietary Information and Inventions Agreement limits, restricts, or in any other way affects the Employee’s communicating with any governmental agency or entity, or communicating with any official or staff person of a governmental agency or entity, concerning matters relevant to the governmental agency or entity.
(e) The Employee acknowledges that he has read and considered all the terms and conditions of this Agreement, including the restraints imposed upon him pursuant to Sections 5(a)-(c) above. The Employee agrees without reservation that these restraints are necessary for the reasonable and proper protection of the Company and its Affiliates, and are reasonable in respect to subject matter, length of time, and geographic area. If the Executive Employee commits a breach, or threatens to commit a breach, of any of the provisions of this Section 5, the Company shall have the right and remedy to have the provisions of this Agreement, as the case may be, Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will may not provide an adequate remedy to the Company.
(e) If . The Employee therefore agrees that the Company, in addition to any other remedies available to it, shall be entitled to preliminary and permanent injunctive relief against any breach or threatened breach by the Employee of any of the provisions of this Section 5, without having to post bond. So that the Company may enjoy the full benefit of the covenants contained in this Section 5 or any part hereof or thereofabove, is hereafter construed to the Employee agrees that the Restricted Period shall be invalid, illegal or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the powertolled, and hereby is directedshall not run, to substitute for or limit such provision(s) in order as closely as possible to effectuate during the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoing, the invalidity, illegality or unenforceability period of any one or more breach by the Employee of the covenants contained in this Section 5 shall not affect the validity of any other provision hereof, which shall be given full effect without regard to the invalid portionssuch covenants.
(f) If any of the covenants contained in this Section 5, or any part hereof thereof, is hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect without regard to the invalid portions.
(g) If any of the covenants contained in this Section 5, or any part thereof, is held to be unenforceable because of the duration or scope of such provision, provision or the area covered thereby or the extent thereofthereby, the parties agree that the tribunal court making such determination shall have the power, and hereby is directed, power to reduce the durationduration and/or area of such provision, and that the parties intend for the court to modify the duration and/or area and/or extent of such provision and, to the maximum extent permitted by law. The parties agree that in its reduced form, such provision shall then be enforceable.
(gh) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state states within the geographical scope of such other covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During The Executive understands and recognizes that his services to the Term, Company are special and unique and that in the course of performing such services the Executive will have access to and knowledge of Confidential and Proprietary Information (as defined in Section 5) and the Executive agrees that, during the Term and for a period of 12 months thereafter, he shall not (1) provide in any servicesmanner, directly or indirectly, to on behalf of himself or any person, firm, partnership, joint venture, corporation or other business entity (“Person”), enter into or commercial entity without engage in any business which is engaged in any business directly or indirectly competitive with the consent Company in the Business (as defined below) (each, a “Restricted Activity”) within the geographic area of the Board Company’s business, which is deemed by the parties hereto to be worldwide. The Executive acknowledges that, due to the unique nature of the Business, the loss of any of its clients or business flow or the improper use of its Confidential and Proprietary Information could create significant instability and cause substantial damage to the Company and its affiliates and therefore the Company has a strong legitimate business interest in protecting the continuity of its business interests and the restriction herein agreed to by the Executive narrowly and fairly serves such an important and critical business interest of the Company. For purposes of this Agreement, the “Business” means the development and commercialization of drugs and other biomedical technologies in which the Company is actively engaged (1) for the treatment, detection or prevention of dermatologic diseases, disorders, and conditions and (2) participate in the formation treatment, detection or prevention of any business or commercial entity without other diseases, disorders, and conditions. Notwithstanding the consent of the Board; providedforegoing, however, that nothing contained in this Section 5(a6(a) shall be deemed to prohibit the Executive from acquiring(i) engaging in a Restricted Activity for or with respect to any subsidiary, solely as an investmentdivision or affiliate or unit (each, shares of capital stock (or other interestsa “Unit”) of a Person if that Unit is not engaged in any corporation (or other entity) not exceeding two percent (2%) of such corporation’s (or other entity’s) then-outstanding shares of capital stock (or other interests).
(b) If this Agreement business which is terminated by competitive with the Company for Cause (as defined in Section 6(c)) or if the Executive terminates this Agreement other than in accordance with Section 7 or 8 hereof, or if the Executive is receiving Severance Payments in accordance with Section 9(c) or payments under Section 9(d), then for a period of one (1) year following the date of termination the Executive shall not (1) provide any services, directly or indirectly, to any other business or commercial entity in the Company’s Field of Interest (as defined in Section 12), (2) solicit any customers or suppliers Business of the Company, irrespective of whether some other Unit of such Person engages in such competition (3as long as the Executive does not engage in a Restricted Activity for such other Unit), or (ii) attempt to persuade acquiring or encourage customers holding, solely for investment, publicly traded securities of any corporation, some or suppliers all of the activities of which are competitive with the business of the Company not to so long as such securities do business with the Company and/or to do business with a competitor of the Companynot, (4) participate in the formation aggregate, constitute more than 4% of any business class or commercial entity engaged primarily in the Company’s Field series of Interest, or (5) directly or indirectly employ, or seek to employ or secure the services in any capacity of, any person employed at that time by the Company or any of its Affiliates, or otherwise encourage or entice any such person to leave such employment; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) outstanding securities of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interests). This Section 5(b) shall be subject to written waivers, which may be obtained by the Executive from the Company.
(c) At no time during the Term of this Agreement or thereafter will the Executive knowingly make any written or oral untrue statement or any statement that disparages the Company or its Affiliates or will the Company knowingly make any written or oral untrue statement or any statement that disparages the Executive.
(d) If the Executive commits a breach, or threatens to commit a breach, of any of the provisions of this Section 5, the Company shall have the right and remedy to have the provisions of this Agreement, as the case may be, specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide an adequate remedy to the Company.
(e) If any of the covenants contained in this Section 5 or any part hereof or thereof, is hereafter construed to be invalid, illegal or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoing, the invalidity, illegality or unenforceability of any one or more of the covenants contained in this Section 5 shall not affect the validity of any other provision hereof, which shall be given full effect without regard to the invalid portions.
(f) If any of the covenants contained in this Section 5, or any part hereof or thereof, is held to be unenforceable because of the duration of such provision, the area covered thereby or the extent thereof, the parties agree that the tribunal making such determination shall have the power, and hereby is directed, to reduce the duration, area and/or extent of such provision and, in its reduced form, such provision shall then be enforceable.
(g) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state within the geographical scope of such other covenants, as to breaches of such covenants in such other jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Samples: Employment Agreement (Manhattan Pharmaceuticals Inc)
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During the Term, the Executive Employee shall not (1) provide any services, directly or indirectly, to any other business or commercial entity without the consent of the Board Company, which may be withheld in the Company’s sole discretion, or (2) participate in the formation of any business or commercial entity without the consent of the BoardCompany, which may be withheld in the Company’s sole discretion; provided, however, that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive Employee from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two percent (2%) % of such corporation’s (or other entity’s) then-then outstanding shares of capital stock (or other interestsand provided, further, that nothing contained herein shall be deemed to limit the Employee’s Permitted Activities pursuant to Section 1(b).
(b) If this Agreement is terminated Upon a termination of the Employee’s employment by the Company for Cause (as defined in any reason other than pursuant to Section 6(c)6(a) or if the Executive terminates this Agreement other than in accordance with Section 7 or 8 hereof6(b), or if upon a termination of the Executive is receiving Severance Payments in accordance Employee’s employment by the Employee for any reason, following such termination of employment and during the Restricted Period, the Employee shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer, or otherwise, compete with Section 9(c) the Company or payments under Section 9(d)any of its Affiliates, then or undertake any planning for a period any business competitive with the Company or any of one (1) year following its Affiliates. Specifically, but without limiting the date of termination foregoing, during the Executive shall not Restricted Period the Employee will not: (1) provide any services, services directly or indirectly, whether as an employee or independent contractor or otherwise, whether with or without compensation, to any other business or commercial entity in the Company’s Field of Interest (as defined in Section 12), (2) solicit United States that is competitive with all or any customers or suppliers portion of the Company, (3) attempt to persuade or encourage customers or suppliers business of the Company not to do business with the Company and/or to do business with a competitor of the Company, or its Affiliates; (42) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field United States that is competitive with all or any portion of Interestthe business of the Company or its Affiliates, or (53) directly or indirectly employ, or seek to employ or secure the services in any capacity ofemploy, any person employed at that time by the Company or any of its AffiliatesAffiliates anywhere in the world, or otherwise encourage or entice any such person to leave such employment; (4) solicit or encourage any independent contractor providing services to the Company or any of its Affiliates anywhere in the world to terminate or diminish its relationship with the Company or its Affiliates; or (5) solicit or encourage any customer, consultant, or vendor of the Company or its Affiliates, anywhere in the world, to terminate or diminish its relationship with the Company or its Affiliates; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive Employee from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) % of such corporation’s (or other entity’s) then outstanding shares of capital stock (or other interestsand provided, further, that nothing contained herein shall be deemed to limit Employee’s Permitted Activities pursuant to Section 1(b). This Section 5(b) shall be subject to written waivers, which waivers that may be obtained by the Executive Employee from the Company.
(c) At no time during the Term of this Agreement or thereafter thereafter, regardless of the reason for termination, will the Executive Employee knowingly make any written or oral verbal untrue statement or any statement that disparages the Company, its Affiliates, its business, its management, or its products in communications with any customer, client or the public. The employee will, furthermore, not otherwise do or say anything that could disrupt the good morale of employees of the Company or any of its Affiliates Affiliates, or will that xxxxx the interests or reputation of the Company knowingly make any written or oral untrue statement or any statement that disparages the Executiveof its Affiliates.
(d) Nothing in this Agreement or the Proprietary Information and Inventions Agreement limits, restricts, or in any other way affects the Employee’s communicating with any governmental agency or entity, or communicating with any official or staff person of a governmental agency or entity, concerning matters relevant to the governmental agency or entity.
(e) The Employee acknowledges that he has read and considered all the terms and conditions of this Agreement, including the restraints imposed upon him pursuant to Sections 5(a)-(c) above. The Employee agrees without reservation that these restraints are necessary for the reasonable and proper protection of the Company and its Affiliates, and are reasonable in respect to subject matter, length of time, and geographic area. If the Executive Employee commits a breach, or threatens to commit a breach, of any of the provisions of this Section 5, the Company shall have the right and remedy to have the provisions of this Agreement, as the case may be, Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will may not provide an adequate remedy to the Company.
(e) If . The Employee therefore agrees that the Company, in addition to any other remedies available to it, shall be entitled to preliminary and permanent injunctive relief against any breach or threatened breach by the Employee of any of the provisions of this Section 5, without having to post bond. So that the Company may enjoy the full benefit of the covenants contained in this Section 5 or any part hereof or thereofabove, is hereafter construed to the Employee agrees that the Restricted Period shall be invalid, illegal or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the powertolled, and hereby is directedshall not run, to substitute for or limit such provision(s) in order as closely as possible to effectuate during the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoing, the invalidity, illegality or unenforceability period of any one or more breach by the Employee of the covenants contained in this Section 5 shall not affect the validity of any other provision hereof, which shall be given full effect without regard to the invalid portionssuch covenants.
(f) If any of the covenants contained in this Section 5, or any part hereof thereof, is hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect without regard to the invalid portions.
(g) If any of the covenants contained in this Section 5, or any part thereof, is held to be unenforceable because of the duration or scope of such provision, provision or the area covered thereby or the extent thereofthereby, the parties agree that the tribunal court making such determination shall have the power, and hereby is directed, power to reduce the durationduration and/or area of such provision, and that the parties intend for the court to modify the duration and/or area and/or extent of such provision and, to the maximum extent permitted by law. The parties agree that in its reduced form, such provision shall then be enforceable.
(gh) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other state states within the geographical scope of such other covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Non-Competition, Non-Solicitation and Non-Disparagement. (a) During the Term, the Executive Employee shall not (1) provide any services, directly or indirectly, to any other business or commercial entity without the consent of the Board Company, which may be withheld in the Company's sole discretion, or (2) participate in the formation of any business or commercial entity without the consent of the BoardCompany, which may be withheld in the Company's sole discretion; provided, however, that nothing contained in this Section 5(a) shall be deemed to prohibit the Executive Employee from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding two percent (2%) % of such corporation’s 's (or other entity’s's) then-then outstanding shares of capital stock (or other interestsand provided, further, that nothing contained herein shall be deemed to limit the Employee's Permitted Activities pursuant to Section 1(b).
(b) If this Agreement is terminated Upon a termination of the Employee's employment by the Company for Cause (as defined in any reason other than pursuant to Section 6(c)6(a) or if the Executive terminates this Agreement other than in accordance with Section 7 or 8 hereof6(b), or if upon a termination of the Executive is receiving Severance Payments in accordance Employee's employment by the Employee for any reason, following such termination of employment and during the Restricted Period, the Employee shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer, or otherwise, compete with Section 9(c) the Company or payments under Section 9(d)any of its Affiliates, then or undertake any planning for a period any business competitive with the Company or any of one (1) year following its Affiliates. Specifically, but without limiting the date of termination foregoing, during the Executive shall not Restricted Period the Employee will not: (1) provide any services, services directly or indirectly, whether as an employee or independent contractor or otherwise, whether with or without compensation, to any other business or commercial entity in the Company’s Field of Interest (as defined in Section 12), (2) solicit United States that is competitive with all or any customers or suppliers portion of the Company, (3) attempt to persuade or encourage customers or suppliers business of the Company not to do business with the Company and/or to do business with a competitor of the Company, or its Affiliates; (42) participate in the formation of any business or commercial entity engaged primarily in the Company’s Field United States that is competitive with all or any portion of Interestthe business of the Company or its Affiliates, or (53) directly or indirectly employ, or seek to employ or secure the services in any capacity ofemploy, any person employed at that time by the Company or any of its AffiliatesAffiliates anywhere in the world, or otherwise encourage or entice any such person to leave such employment; (4) solicit or encourage any independent contractor providing services to the Company or any of its Affiliates anywhere in the world to terminate or diminish its relationship with the Company or its Affiliates; or (5) solicit or encourage any customer, consultant, or vendor of the Company or its Affiliates anywhere in the world, to terminate or diminish its relationship with the Company or its Affiliates; provided, however, that nothing contained in this Section 5(b) shall be deemed to prohibit the Executive Employee from acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) in the Company’s Field of Interest not exceeding two percent (2%) % of such corporation’s 's (or other entity’s's) then outstanding shares of capital stock (or other interestsand provided, further, that nothing contained herein shall be deemed to limit Employee's Permitted Activities pursuant to Section l(b). This Section 5(b) shall be subject to written waivers, which waivers that may be obtained by the Executive Employee from the Company.
(c) At no time during the Term of this Agreement or thereafter thereafter, regardless of the reason for termination, will the Executive Employee knowingly make any written or oral verbal untrue statement or any statement that disparages the Company, its Affiliates, its business, its management, or its products in communications with any customer, client or the public. The employee will, furthermore, not otherwise do or say anything that could disrupt the good morale of employees of the Company or any of its Affiliates Affiliates, or will that xxxxx the interests or reputation of the Company knowingly make any written or oral untrue statement or any statement that disparages the Executiveof its Affiliates.
(d) Nothing in this Agreement or the Proprietary Information and Inventions Agreement limits, restricts, or in any other way affects the Employee's communicating with any governmental agency or entity, or communicating with any official or staff person of a governmental agency or entity, concerning matters relevant to the governmental agency or entity.
(e) The Employee acknowledges that he has read and considered all the terms and conditions of this Agreement, including the restraints imposed upon him pursuant to Sections 5(a)-(c) above. The Employee agrees without reservation that these restraints are necessary for the reasonable and proper protection of the Company and its Affiliates, and are reasonable in respect to subject matter, length of time, and geographic area. If the Executive Employee commits a breach, or threatens to commit a breach, of any of the provisions of this Section 5, the Company shall have the right and remedy to have the provisions of this Agreement, as the case may be, Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will may not provide an adequate remedy to the Company.
(e) If . The Employee therefore agrees that the Company, in addition to any other remedies available to it, shall be entitled to preliminary and permanent injunctive relief against any breach or threatened breach by the Employee of any of the provisions of this Section 5, without having to post bond. So that the Company may enjoy the full benefit of the covenants contained in this Section 5 or any part hereof or thereofabove, is hereafter construed to the Employee agrees that the Restricted Period shall be invalid, illegal or unenforceable by a court or regulatory agency or tribunal of competent jurisdiction, such court, agency or tribunal shall have the powertolled, and hereby is directedshall not run, to substitute for or limit such provision(s) in order as closely as possible to effectuate during the original intent of the parties with respect to such invalid, illegal or unenforceable covenant(s) generally and so to enforce such substituted covenant(s). Subject to the foregoing, the invalidity, illegality or unenforceability period of any one or more breach by the Employee of the covenants contained in this Section 5 shall not affect the validity of any other provision hereof, which shall be given full effect without regard to the invalid portionssuch covenants.
(f) If any of the covenants contained in this Section 5, or any part hereof thereof, is hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect without regard to the invalid portions.
(g) If any of the covenants contained in this Section 5, or any part thereof, is held to be unenforceable because of the duration or scope of such provision, provision or the area covered thereby or the extent thereofthereby, the parties agree that the tribunal court making such determination shall have the power, and hereby is directed, power to reduce the durationduration and/or area of such provision, and that the patties intend for the court to modify the duration and/or area and/or extent of such provision and, to the maximum extent permitted by law. The parties agree that in its reduced form, such provision shall then be enforceable.
(gh) Anything else contained in this Agreement to the contrary notwithstanding, the parties hereto intend to and hereby do confer jurisdiction to enforce the covenants contained in this Section 5 A upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s 's right to the relief provided above in the courts of any other state states within the geographical scope of such other covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Samples: Employment Agreement (Alexion Pharmaceuticals, Inc.)
