Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee access to Confidential Information for use only during the Employment Period, and Employee acknowledges and agrees that the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill of the Company Group, and as an express incentive for the Company to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests. (b) During the Prohibited Period, Employee shall not, without the prior written approval of the Board, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature: (i) engage in or participate within the Market Area in competition with any member of the Company Group in any aspect of the Business, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group; (ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area; (iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or (iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group. (c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity. (d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed. (e) The following terms shall have the following meanings:
Appears in 6 contracts
Samples: Employment Agreement (Charah Solutions, Inc.), Employment Agreement (Charah Solutions, Inc.), Employment Agreement (Charah Solutions, Inc.)
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Executive shall not, at any time while employed by the Company shall provide Employee access and for twelve (12) months after the Termination Date with respect to Confidential Information the Executive’s Termination of Employment for use only during any reason, directly or indirectly engage in, have any equity interest in, interview for a potential employment or consulting relationship with or manage or operate any person, firm, corporation, partnership or business (whether as director, officer, employee, agent, representative, partner, security holder, consultant or otherwise) that engages in any business which competes with the Employment PeriodCompany anywhere in the world; provided, and Employee acknowledges and agrees however, that the Company Group will Executive shall be entrusting Employee, permitted to acquire and/or hold a passive stock interest in Employee’s unique such a business if the stock interest acquired and/or held is publicly traded and special capacity, with developing the goodwill constitutes not more than two percent (2%) of the Company Group, and as an express incentive for the Company to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts outstanding voting securities of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interestssuch business.
(b) During the Prohibited Period, Employee The Executive shall not, without at any time while employed by the prior written approval Company and for twelve (12) months after the Termination Date with respect to the Executive’s Termination of the BoardEmployment for any reason, directly or indirectly, for Employee recruit or on behalf otherwise solicit or induce any employee, customer, subscriber or supplier of or in conjunction with any other person or entity of any nature:
the Company (i) engage in to terminate its employment or participate within arrangement with the Market Area in competition with any member of the Company Group in any aspect of the Business, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market AreaCompany, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of to otherwise change its relationship with the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company GroupCompany.
(c) Because In the event the terms of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group 4 shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, determined by injunctions and restraining orders from any court of competent jurisdiction, without the necessity jurisdiction to be unenforceable by reason of showing any actual damages its extending for too great a period of time or that money damages would not afford an adequate remedy, and without the necessity over too great a geographical area or by reason of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or its being too extensive in any other member respect, it will be interpreted to extend only over the maximum period of time for which it may be enforceable, over the Company Group’s exclusive remedy for a breach but instead shall maximum geographical area as to which it may be enforceable, or to the maximum extent in addition to all other rights and remedies available respects as to the Company and each other member of the Company Group at law and equitywhich it may be enforceable, all as determined by such court in such action.
(d) The covenants As used in this Section 104, (i) the term “Company” shall include the Company and each provision its direct or indirect parents and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformedsubsidiaries.
(e) The Executive agrees, while employed by the Company and following terms shall have the following meanings:Termination Date, to refrain from disparaging the Company and its Affiliates, including any of its services, technologies or practices, or any of its directors, officers, agents, representatives or stockholders, either orally or in writing.
Appears in 4 contracts
Samples: Severance Agreement (UCI Holdco, Inc.), Severance Agreement (United Components Inc), Severance Agreement (UCI Holdco, Inc.)
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide For the reasons and consideration specified in Section 8, Employee access to Confidential Information for use only hereby covenants and agrees that, during the Employment Period, and Employee acknowledges and agrees that the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill Term of the Company Group, and as an express incentive for the Company to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.
(b) During the Prohibited PeriodNon-Competition, Employee shall not, without the prior written approval of the Board, directly or indirectly, for Employee individually or on behalf of as an officer, director, manager, employee, stockholder, consultant, contractor, partner, member, joint venturer, agent, equity owner or in conjunction with any other person or entity of any naturecapacity whatsoever:
(i) engage in or participate within the Market Area in competition with any member of the Company Group in any aspect of the Businessown, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business manage, operate, join, control, be employed by, provide Competing Services to, or participate in the Market Area ownership, management, operation or control of or provision of Competing Services to, a Competing Business operating in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company GroupGeographic Area;
(ii) appropriate any Business Opportunity ofknowingly recruit, hire, assist in hiring, attempt to hire, or relating tocontact or solicit with respect to hiring any Person who, at any member time during the 12 month period ending on the Date of Termination, was an employee of the Company; provided, that Employee may hire any Person that served as an administrative assistant or clerical employee at the time Employee’s employment with the Company Group located in the Market Areaterminates;
(iii) solicit, canvass, approach, encourage, entice induce or attempt to induce any customer or supplier of any member employee of the Company Group to cease terminate, or lessen such customer’s or supplier’s business with in any member of way interfere with, the relationship between the Company Groupand any employee thereof; or
(iv) solicit, canvass, approach, encourage, entice induce or attempt to induce any employee customer, client, patient, supplier, service provider, or contractor of any member other business relation of the Company Group in the Geographic Area to terminate hiscease doing business with the Company, her or its employment or engagement in any way interfere with the relationship between the Company and any member such Person. Notwithstanding the foregoing, the Company agrees that Employee may own less than one percent of the outstanding voting securities of any publicly traded company that is a Competing Business so long as Employee does not otherwise participate in such competing business in any way prohibited by this Section 10. This Section 10(a) shall not apply in the event Company Groupbreaches any of its obligations under Section 5 or 6.
(b) Employee shall not make any negative or disparaging comments regarding the Company, its Subsidiaries or Affiliates or any of their respective officers, directors, shareholders, partners, members, managers, agents or employees (collectively, the “Representatives”), including regarding the performance of the Company, its Subsidiaries or Affiliates, or otherwise take any action that could reasonably be expected to adversely affect the Company, its Subsidiaries or Affiliates or the personal or professional reputation of any of their respective Representatives. Information required to be disclosed by Employee pursuant to any applicable law, court order, subpoena, process or governmental decree shall not constitute a violation or breach of this Section 10(b); provided, that Employee delivers written notice of such required disclosure to the Company promptly before making such disclosure if such notice is not prohibited by applicable law, court order, subpoena, process or governmental decree.
(c) Because Employee acknowledges that the geographic boundaries, scope of prohibited activities, and time duration of the difficulty preceding paragraphs in this Section 10 (including the defined terms for “Competing Business,” “Geographic Area,” and “Term of measuring economic losses Non-Competition” set forth in Section 1) are reasonable in nature and are no broader than are necessary to maintain the goodwill of the Company Group and the confidentiality of its Confidential Information and to protect the goodwill and other legitimate business interests of the Company, and also that the enforcement of such covenants would not cause Employee any undue hardship or unreasonably interfere with Employee’s ability to earn a livelihood. If Employee violates the covenants and restrictions in this Section 10 and the Company brings legal action for injunctive or other equitable relief, Employee agrees that the Company shall not be deprived of the benefit of the full period of the restrictive covenant, as a result of a breach or threatened breach of the covenants set forth time involved in obtaining such relief. Accordingly, Employee agrees that the provisions in Section 9 and in this 10(a) shall have a duration determined pursuant to Section 1010(a), and because of computed from the immediate and irreparable damage that would be caused to date the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach legal or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equityis granted.
(d) The covenants If any court in any jurisdiction determines that any portion of this Section 1010 (including the defined terms for “Competing Business,” “Geographic Area,” and “Term of Non-Competition” set forth in Section 1) is invalid or unenforceable within such jurisdiction under circumstances then existing, the remainder of this Section 10 (including the defined terms for “Competing Business,” “Geographic Area,” and each provision and portion hereof, are severable and separate, and the unenforceability “Term of any specific covenant (or portion thereofNon-Competition” set forth in Section 1) shall not affect thereby be affected and shall be given full effect without regard to the invalid or unenforceable provisions. If any court in any jurisdiction construes any of the provisions of any other covenant this Section 10 (or portion thereof). Moreover, in including the event any arbitrator or court defined terms for “Competing Business,” “Geographic Area,” and “Term of competent jurisdiction shall determine that the scope, time or territorial restrictions Non-Competition” set forth are unreasonablein Section 1) to be invalid or unenforceable within such jurisdiction under circumstances then existing, then it is the intention because of the parties that duration, scope or geographical area of such provision, such court shall be required to substitute the maximum duration, scope or geographical area reasonable under such circumstances within such jurisdiction for the stated period, scope or area with respect to such jurisdiction and such court shall be allowed to revise the restrictions be enforced contained herein to cover the fullest extent which such arbitrator or court deems reasonablemaximum duration, scope and area permitted by law, and this Agreement shall thereby be reformedto enforce such provision as so revised.
(e) The following As used in this Section 10 (and the defined terms for “Competing Business,” “Geographic Area,” and “Term of Non-Competition” set forth in Section 1), “Company” shall have include the following meanings:Company and any of its Subsidiaries.
Appears in 3 contracts
Samples: Employment Agreement (Odyssey Healthcare Inc), Employment Agreement (Odyssey Healthcare Inc), Employment Agreement (Odyssey Healthcare Inc)
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide For the reasons and consideration specified in Section 8, Employee access to Confidential Information for use only hereby covenants and agrees that, during the Employment Period, and Employee acknowledges and agrees that the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill Term of the Company Group, and as an express incentive for the Company to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.
(b) During the Prohibited PeriodNon-Competition, Employee shall not, without the prior written approval of the Board, directly or indirectly, for Employee individually or on behalf of as an officer, director, manager, employee, stockholder, consultant, contractor, partner, member, joint venturer, agent, equity owner or in conjunction with any other person or entity of any naturecapacity whatsoever:
(i) engage in or participate within the Market Area in competition with any member of the Company Group in any aspect of the Businessown, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business manage, operate, join, control, be employed by, provide Competing Services to, or participate in the Market Area ownership, management, operation or control of or provision of Competing Services to, a Competing Business operating in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company GroupGeographic Area;
(ii) appropriate any Business Opportunity ofrecruit, hire, assist in hiring, attempt to hire, or relating tocontact or solicit with respect to hiring any Person who, at any member time during the 12 month period ending on the Date of Termination, was an employee of the Company; provided, that Employee may hire any Person that served as an administrative assistant or clerical employee at the time Employee’s employment with the Company Group located in the Market Areaterminates;
(iii) solicit, canvass, approach, encourage, entice induce or attempt to induce any customer or supplier of any member employee of the Company Group to cease terminate, or lessen such customer’s or supplier’s business with in any member of way interfere with, the relationship between the Company Groupand any employee thereof; or
(iv) solicit, canvass, approach, encourage, entice induce or attempt to induce any employee customer, client, patient, supplier, service provider, or contractor of any member other business relation of the Company Group in the Geographic Area to terminate hiscease doing business with the Company, her or its employment or engagement in any way interfere with the relationship between the Company and any member such Person. Notwithstanding the foregoing, the Company agrees that Employee may own less than one percent of the outstanding voting securities of any publicly traded company that is a Competing Business so long as Employee does not otherwise participate in such competing business in any way prohibited by this Section 10.
(b) Employee shall not make any negative or disparaging comments regarding the Company, its Subsidiaries or Affiliates or any of their respective officers, directors, shareholders, partners, members, managers, agents or employees (collectively, the “Representatives”), including regarding the performance of the Company, its Subsidiaries or Affiliates, or otherwise take any action that could reasonably be expected to adversely affect the Company, its Subsidiaries or Affiliates or the personal or professional reputation of any of their respective Representatives. Information required to be disclosed by Employee pursuant to any applicable law, court order, subpoena, process or governmental decree shall not constitute a violation or breach of this Section 10(b); provided, that Employee delivers written notice of such required disclosure to the Company Grouppromptly before making such disclosure if such notice is not prohibited by applicable law, court order, subpoena, process or governmental decree.
(c) Because Employee acknowledges that the geographic boundaries, scope of prohibited activities, and time duration of the difficulty preceding paragraphs in this Section 10 (including the defined terms for “Competing Business,” “Geographic Area,” and “Term of measuring economic losses Non-Competition” set forth in Section 1) are reasonable in nature and are no broader than are necessary to maintain the goodwill of the Company Group and the confidentiality of its Confidential Information and to protect the goodwill and other legitimate business interests of the Company, and also that the enforcement of such covenants would not cause Employee any undue hardship or unreasonably interfere with Employee’s ability to earn a livelihood. If Employee violates the covenants and restrictions in this Section 10 and the Company brings legal action for injunctive or other equitable relief, Employee agrees that the Company shall not be deprived of the benefit of the full period of the restrictive covenant, as a result of a breach or threatened breach of the covenants set forth time involved in obtaining such relief. Accordingly, Employee agrees that the provisions in Section 9 and in this 10(a) shall have a duration determined pursuant to Section 1010(a), and because of computed from the immediate and irreparable damage that would be caused to date the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach legal or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equityis granted.
(d) The covenants If any court in any jurisdiction determines that any portion of this Section 1010 (including the defined terms for “Competing Business,” “Geographic Area,” and “Term of Non-Competition” set forth in Section 1) is invalid or unenforceable within such jurisdiction under circumstances then existing, the remainder of this Section 10 (including the defined terms for “Competing Business,” “Geographic Area,” and each provision and portion hereof, are severable and separate, and the unenforceability “Term of any specific covenant (or portion thereofNon-Competition” set forth in Section 1) shall not affect thereby be affected and shall be given full effect without regard to the invalid or unenforceable provisions. If any court in any jurisdiction construes any of the provisions of any other covenant this Section 10 (or portion thereof). Moreover, in including the event any arbitrator or court defined terms for “Competing Business,” “Geographic Area,” and “Term of competent jurisdiction shall determine that the scope, time or territorial restrictions Non-Competition” set forth are unreasonablein Section 1) to be invalid or unenforceable within such jurisdiction under circumstances then existing, then it is the intention because of the parties that duration, scope or geographical area of such provision, such court shall be required to substitute the maximum duration, scope or geographical area reasonable under such circumstances within such jurisdiction for the stated period, scope or area with respect to such jurisdiction and such court shall be allowed to revise the restrictions be enforced contained herein to cover the fullest extent which such arbitrator or court deems reasonablemaximum duration, scope and area permitted by law, and this Agreement shall thereby be reformedto enforce such provision as so revised.
(e) The following As used in this Section 10 (and the defined terms for “Competing Business,” “Geographic Area,” and “Term of Non-Competition” set forth in Section 1), “Company” shall have include the following meanings:Company and any of its Subsidiaries.
Appears in 2 contracts
Samples: Employment Agreement (Odyssey Healthcare Inc), Employment Agreement (Odyssey Healthcare Inc)
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide For the reasons and consideration specified in Section 8, Employee access to Confidential Information for use only hereby covenants and agrees that, during the Employment Period, and Employee acknowledges and agrees that the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill Term of the Company Group, and as an express incentive for the Company to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.
(b) During the Prohibited PeriodNon-Competition, Employee shall not, without the prior written approval of the Board, directly or indirectly, for Employee individually or on behalf of as an officer, director, manager, employee, stockholder, consultant, contractor, partner, member, joint venturer, agent, equity owner or in conjunction with any other person or entity of any naturecapacity whatsoever:
(i) engage in or participate within the Market Area in competition with any member of the Company Group in any aspect of the Businessown, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business manage, operate, join, control, be employed by, provide Competing Services to, or participate in the Market Area ownership, management, operation or control of or provision of Competing Services to, a Competing Business operating in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company GroupGeographic Area;
(ii) appropriate any Business Opportunity ofknowingly recruit, hire, assist in hiring, attempt to hire, or relating tocontact or solicit with respect to hiring any Person who, at any member time during the 12 month period ending on the Date of Termination, was an employee of the Company; provided, that Employee may hire any Person that served as an administrative assistant assigned to Employee at the time Employee’s employment with the Company Group located in the Market Areaterminates;
(iii) solicit, canvass, approach, encourage, entice induce or attempt to induce any customer or supplier of any member employee of the Company Group to cease terminate, or lessen such customer’s or supplier’s business with in any member of way interfere with, the relationship between the Company Groupand any employee thereof; or
(iv) solicit, canvass, approach, encourage, entice induce or attempt to induce any employee customer, client, patient, supplier, service provider, or contractor of any member other business relation of the Company Group in the Geographic Area to terminate hiscease doing business with the Company, her or its employment or engagement in any way interfere with the relationship between the Company and any member such Person. Notwithstanding the foregoing, the Company agrees that Employee may own less than one percent of the outstanding voting securities of any publicly traded company that is a Competing Business so long as Employee does not otherwise participate in such competing business in any way prohibited by this Section 10. This Section 10(a) shall not apply in the event Company Groupbreaches any of its obligations under Section 5 or 6.
(b) Employee shall not make any negative or disparaging comments regarding the Company, its Subsidiaries or Affiliates or any of their respective officers, directors, shareholders, partners, members, managers, agents or employees (collectively, the “Representatives”), including regarding the performance of the Company, its Subsidiaries or Affiliates, or otherwise take any action that could reasonably be expected to adversely affect the Company, its Subsidiaries or Affiliates or the personal or professional reputation of any of their respective Representatives. Information required to be disclosed by Employee pursuant to any applicable law, court order, subpoena, process or governmental decree shall not constitute a violation or breach of this Section 10(b); provided, that Employee delivers written notice of such required disclosure to the Company promptly before making such disclosure if such notice is not prohibited by applicable law, court order, subpoena, process or governmental decree.
(c) Because Employee acknowledges that the geographic boundaries, scope of prohibited activities, and time duration of the difficulty preceding paragraphs in this Section 10 (including the defined terms for “Competing Business,” “Geographic Area,” and “Term of measuring economic losses Non-Competition” set forth in Section 1) are reasonable in nature and are no broader than are necessary to maintain the goodwill of the Company Group and the confidentiality of its Confidential Information and to protect the goodwill and other legitimate business interests of the Company, and also that the enforcement of such covenants would not cause Employee any undue hardship or unreasonably interfere with Employee’s ability to earn a livelihood. If Employee violates the covenants and restrictions in this Section 10 and the Company brings legal action for injunctive or other equitable relief, Employee agrees that the Company shall not be deprived of the benefit of the full period of the restrictive covenant, as a result of a breach or threatened breach of the covenants set forth time involved in obtaining such relief. Accordingly, Employee agrees that the provisions in Section 9 and in this 10(a) shall have a duration determined pursuant to Section 1010(a), and because of computed from the immediate and irreparable damage that would be caused to date the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach legal or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equityis granted.
(d) The covenants If any court in any jurisdiction determines that any portion of this Section 10, and each provision and portion hereof, are severable and separate, and 10 (including the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following defined terms shall have the following meanings:for “Competing Business,” “Geographic Area,” and
Appears in 2 contracts
Samples: Employment Agreement (Odyssey Healthcare Inc), Employment Agreement (Odyssey Healthcare Inc)
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee Executive access to Confidential Information for use only during the Employment Period, and Employee Executive acknowledges and agrees that the Company Group will be entrusting EmployeeExecutive, in EmployeeExecutive’s unique and special capacity, with developing the goodwill of the Company Group, and in consideration of the Company providing Executive with access to Confidential Information and as an express incentive for the Company to enter into this Agreement and employ Employee Executive hereunder, Employee Executive has voluntarily agreed to the covenants set forth in this Section 108. Employee Executive agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee Executive undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.
(b) During the Prohibited PeriodPeriod (as defined below), Employee Executive shall not, and shall cause Executive’s controlled affiliates not to, as applicable, without the prior written approval of the Board, directly or indirectly, for Employee Executive or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in or participate within the Market Area (as defined below) in competition with any member of the Company Group in any aspect of the BusinessBusiness (as defined below), including by which prohibition shall prevent Executive and Executive’s controlled affiliates, as applicable, from directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which EmployeeExecutive’s duties or responsibilities responsibilities: (x) are the same as or similar to the duties or responsibilities that Employee Executive had on behalf of any member of the Company Group, or (y) involve direct or indirect oversight of, or responsibility for, duties or responsibilities that are the same or similar to the duties or responsibilities that Executive had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity (as defined below) of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group with whom or which Executive had contact on behalf of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group.
(c) Notwithstanding the foregoing, it shall not be a violation of Section 8(b)(i) above for Executive to hold, as a passive investment, up to five percent (5%) of (i) the publicly traded securities of any company, or (ii) the equity or other interests in a privately held entity that engages in the Business so long as, in each instance, Executive does not have the power to direct or control the applicable entity.
(d) Executive shall not make any negative statements or communications to any Person that is intended to or is reasonably likely to harm the business or disparage the reputation of any member of the Company Group or any of their respective direct or indirect equity holders, directors, officers or employees. The Company shall direct its officers, managers, and directors to not make or cause to be made any negative statements or communications to any Person that is intended to or is reasonably likely to harm the business or disparage the reputation of Executive or Executive’s affiliates. Notwithstanding the foregoing, nothing in this Agreement is intended to require any person to make any untruthful statement or to violate any law.
(e) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 6, Section 7 and in this Section 108, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breachbreach as determined by the Board in its reasonable discretion, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach or threatened breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(df) The covenants in this Section 108, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(eg) The following terms shall have the following meaningsmeanings for purposes of this Agreement:
Appears in 2 contracts
Samples: Employment Agreement (Global Gas Corp), Unit Purchase Agreement (Dune Acquisition Corp)
Non-Competition; Non-Solicitation; Non-Disparagement. (ai) The Company shall provide Employee access to Confidential Information for use only during the Employment Period, and Employee Executive acknowledges and agrees that recognizes the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing highly competitive nature of the goodwill businesses of the Company Groupand its subsidiaries, and accordingly agrees as an express incentive for the Company to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.follows:
(b1) During the Prohibited Employment Term and for a period of two (2) years following the date the Executive ceases to be employed by the Company (together, the “Restricted Period”), Employee shall the Executive will not, without whether on the prior written approval of the Board, directly or indirectly, for Employee Executive’s own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other person business organization, entity or entity enterprise whatsoever (for the purposes of this Section 9, a “Person”), directly or indirectly solicit or assist in soliciting any nature:
business of the same type or kind as the Covered Business performed by the Restricted Group from or with respect to (iA) engage clients or customers of the Restricted Group with respect to whom the Executive provided services, either alone or with others, or had a business relationship, or on whose account the Executive worked or became familiar, or supervised directly or indirectly the servicing activities with respect to that client or customer, during the twenty-four month period prior to the Executive’s Termination Date, and further provided such clients or customers were clients or customers of the Restricted Group either on such Termination Date or during the twenty-four months prior thereto, and (B) prospective clients or customers of the Restricted Group which the Executive alone, in combination with others, or participate within in a supervisory capacity, solicited during the Market Area in competition with eighteen months prior to the Executive’s Termination Date. Notwithstanding the foregoing, the provisions of this Section 9(a)(i) shall not be violated by (A) general advertising or solicitation not specifically targeted at Company-related persons or entities, (B) the Executive serving solely as a reference, upon request, for any member employee of the Company Group in any aspect of the Business, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market AreaGroup, or (BC) joining, becoming an employee or consultant of, or otherwise being affiliated with, actions taken by any person or entity with which the Executive is associated if the Executive is not directly or indirectly involved in the matter and has not directly or indirectly identified such Company-related person or entity for soliciting or hiring.
(2) During the Restricted Period, the Executive will not directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant:
a. engage in, or acquire a financial interest in or otherwise become actively involved with any Person engaged in, the Covered Business within any country where the Restricted Group engages, or planning plans to engage engage, in the Covered Business as of the Executive’s Termination Date; or
b. intentionally and adversely interfere with, or intentionally attempt to adversely interfere with, business relationships between the members of the Restricted Group and any of their clients, customers, suppliers, partners, members or investors.
(3) Notwithstanding anything to the contrary in this Section 9, the Executive may, directly or indirectly own, solely as an investment, securities of any Person engaged in the Covered Business which are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Executive (A) is not a controlling person of, or a member of a group which controls, such person and (B) does not, directly or indirectly, own 2% or more of any class of securities of such Person. In addition, the provisions of this Section 9 shall not be violated by the Executive, during the portion of the Restricted Period commencing after the Employment Term, commencing employment with, or providing services to, a portfolio company of a private equity or financial sponsor that owns, invests in, or operates a business that engages in a Covered Business or otherwise commencing employment with, or providing services to, a subsidiary, division or unit of any entity that engages in a Covered Business, in each case, so long as (i) the Business Executive does not directly or indirectly perform services (including advisory services) for the entity that is engaged in the Market Area in competition, Covered Business and (ii) such activities do not interfere or anticipated competition, conflict with any member of the Company Group in any capacity (with respect to this clause (B)) in which EmployeeExecutive’s duties hereunder or responsibilities are create a fiduciary conflict.
(4) During the same as Restricted Period, the Executive will not, whether on the Executive’s own behalf or similar to the duties or responsibilities that Employee had on behalf of or in conjunction with any member Person, directly or indirectly:
a. solicit or encourage any employee of the Company Restricted Group to leave the employment of the Restricted Group;
b. hire any executive-level employee (iii.e., vice president level and above or equivalent title ) appropriate any Business Opportunity ofwho was employed by the Restricted Group as of the Executive’s Termination Date or who left the employment of the Restricted Group coincident with, or relating within one (1) year prior to, or after, the Executive’s Termination Date, excluding an executive-level employee whose employment with the Restricted Group ceased at least twelve months prior to the date of such hiring; or
c. encourage any member consultant of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Restricted Group to cease or lessen such customer’s or supplier’s business working with any member of the Company Group; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Restricted Group.
(c5) Because For purposes of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meanings9:
Appears in 2 contracts
Samples: Employment Agreement (Alight, Inc. / Delaware), Employment Agreement (Alight, Inc. / Delaware)
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide For the reasons and consideration specified in Section 8, Employee access to Confidential Information for use only hereby covenants and agrees that, during the Employment Period, and Employee acknowledges and agrees that the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill Term of the Company Group, and as an express incentive for the Company to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.
(b) During the Prohibited PeriodNon-Competition, Employee shall not, without the prior written approval of the Board, directly or indirectly, for Employee individually or on behalf of as an officer, director, manager, employee, stockholder, consultant, contractor, partner, member, joint venturer, agent, equity owner or in conjunction with any other person or entity of any naturecapacity whatsoever:
(i) engage in or participate within the Market Area in competition with any member of the Company Group in any aspect of the Businessown, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business manage, operate, join, control, be employed by, provide Competing Services to, or participate in the Market Area ownership, management, operation or control of or provision of Competing Services to, a Competing Business operating in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company GroupGeographic Area;
(ii) appropriate any Business Opportunity ofknowingly recruit, hire, assist in hiring, attempt to hire, or relating tocontact or solicit with respect to hiring any Person who, at any member time during the 12 month period ending on the Date of Termination, was an employee of the Company; provided, that Employee may hire any Person that served as an administrative assistant assigned to Employee at the time Employee’s employment with the Company Group located in the Market Areaterminates;
(iii) solicit, canvass, approach, encourage, entice induce or attempt to induce any customer or supplier of any member employee of the Company Group to cease terminate, or lessen such customer’s or supplier’s business with in any member of way interfere with, the relationship between the Company Groupand any employee thereof; or
(iv) solicit, canvass, approach, encourage, entice induce or attempt to induce any employee customer, client, patient, supplier, service provider, or contractor of any member other business relation of the Company Group in the Geographic Area to terminate hiscease doing business with the Company, her or its employment or engagement in any way interfere with the relationship between the Company and any member such Person. Notwithstanding the foregoing, the Company agrees that Employee may own less than one percent of the outstanding voting securities of any publicly traded company that is a Competing Business so long as Employee does not otherwise participate in such competing business in any way prohibited by this Section 10. This Section 10(a) shall not apply in the event Company Groupbreaches any of its obligations under Section 5 or 6.
(b) Employee shall not make any negative or disparaging comments regarding the Company, its Subsidiaries or Affiliates or any of their respective officers, directors, shareholders, partners, members, managers, agents or employees (collectively, the “Representatives”), including regarding the performance of the Company, its Subsidiaries or Affiliates, or otherwise take any action that could reasonably be expected to adversely affect the Company, its Subsidiaries or Affiliates or the personal or professional reputation of any of their respective Representatives. Information required to be disclosed by Employee pursuant to any applicable law, court order, subpoena, process or governmental decree shall not constitute a violation or breach of this Section 10(b); provided, that Employee delivers written notice of such required disclosure to the Company promptly before making such disclosure if such notice is not prohibited by applicable law, court order, subpoena, process or governmental decree.
(c) Because Employee acknowledges that the geographic boundaries, scope of prohibited activities, and time duration of the difficulty preceding paragraphs in this Section 10 (including the defined terms for “Competing Business,” “Geographic Area,” and “Term of measuring economic losses Non-Competition” set forth in Section 1) are reasonable in nature and are no broader than are necessary to maintain the goodwill of the Company Group and the confidentiality of its Confidential Information and to protect the goodwill and other legitimate business interests of the Company, and also that the enforcement of such covenants would not cause Employee any undue hardship or unreasonably interfere with Employee’s ability to earn a livelihood. If Employee violates the covenants and restrictions in this Section 10 and the Company brings legal action for injunctive or other equitable relief, Employee agrees that the Company shall not be deprived of the benefit of the full period of the restrictive covenant, as a result of a breach or threatened breach of the covenants set forth time involved in obtaining such relief. Accordingly, Employee agrees that the provisions in Section 9 and in this 10(a) shall have a duration determined pursuant to Section 1010(a), and because of computed from the immediate and irreparable damage that would be caused to date the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach legal or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equityis granted.
(d) The covenants If any court in any jurisdiction determines that any portion of this Section 1010 (including the defined terms for “Competing Business,” “Geographic Area,” and “Term of Non-Competition” set forth in Section 1) is invalid or unenforceable within such jurisdiction under circumstances then existing, the remainder of this Section 10 (including the defined terms for “Competing Business,” “Geographic Area,” and each provision and portion hereof, are severable and separate, and the unenforceability “Term of any specific covenant (or portion thereofNon-Competition” set forth in Section 1) shall not affect thereby be affected and shall be given full effect without regard to the invalid or unenforceable provisions. If any court in any jurisdiction construes any of the provisions of any other covenant this Section 10 (or portion thereof). Moreover, in including the event any arbitrator or court defined terms for “Competing Business,” “Geographic Area,” and “Term of competent jurisdiction shall determine that the scope, time or territorial restrictions Non-Competition” set forth are unreasonablein Section 1) to be invalid or unenforceable within such jurisdiction under circumstances then existing, then it is the intention because of the parties that duration, scope or geographical area of such provision, such court shall be required to substitute the maximum duration, scope or geographical area reasonable under such circumstances within such jurisdiction for the stated period, scope or area with respect to such jurisdiction and such court shall be allowed to revise the restrictions be enforced contained herein to cover the fullest extent which such arbitrator or court deems reasonablemaximum duration, scope and area permitted by law, and this Agreement shall thereby be reformedto enforce such provision as so revised.
(e) The following As used in this Section 10 (and the defined terms for “Competing Business,” “Geographic Area,” and “Term of Non-Competition” set forth in Section 1), “Company” shall have include the following meanings:Company and any of its Subsidiaries.
Appears in 2 contracts
Samples: Employment Agreement (Odyssey Healthcare Inc), Employment Agreement (Odyssey Healthcare Inc)
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee access to Confidential Information for use only during the Employment Period, and Employee acknowledges and agrees that the members of the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill of the members of the Company Group, and in consideration of the Company providing Employee with access to Confidential Information and as an express incentive for the Company to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interestsinterests of each member of the Company Group.
(b) During the Prohibited Period, Employee shall not, without the prior written approval of the Board, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in, participate in or participate take preparatory steps that result in engagement or participation in the Business within the Market Area in competition with any member of the Company Group in any aspect of the BusinessArea, including by directly or indirectly: (A) owning, investing in, managing, controlling, participating in, consulting with, contributing to, lending one’s name to, providing assistance to, operating, or being an officer or director of, any business that competes with any member of the Company Group person or entity engaged in or preparing to engage in the Market AreaBusiness, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, or rendering services for, any person or entity engaged in, or planning to engage that has taken preparatory steps that result in engagement in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group or in any manner that requires Employee to learn of or use nonpublic, confidential, proprietary or trade secret information that is similar to the type of Confidential Information of which Employee learned or used at any member of the Company Group or in any manner that requires Employee to have client contacts or develop client relationships similar to the client contacts or the development of client relationships in which Employee engaged at any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group which or with whom Employee had contact, was involved as part of Employee’s job responsibilities (including oversight responsibility) with any member of the Company Group and/or about whom Employee learned Confidential Information to cease or lessen such customer’s or supplier’s business with any member of the Company Group; orGroup or otherwise adversely interference with the relationship between any member of the Company Group and such customer or supplier;
(iv) hire or engage any employee or contractor of any member of the Company Group with whom Employee had contact or solicit, canvass, approach, encourage, entice or induce any such employee or contractor of any member of the Company Group to terminate or reduce his, her or its employment or engagement with any member of the Company Group; or
(v) attempt to do any of the foregoing.
(c) Because of the difficulty of measuring economic losses to the members of the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformedreformed to make the restrictive covenants contained herein enforceable to maximum extent permitted by applicable law.
(e) The following terms shall have the following meanings:
Appears in 2 contracts
Samples: Employment Agreement (Flotek Industries Inc/Cn/), Employment Agreement (Flotek Industries Inc/Cn/)
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee Executive access to Confidential Information for use only during the Employment Periodperiod of Executive’s employment with the Company or another member of the Company Group, and Employee Executive acknowledges and agrees that the Company Group will be entrusting EmployeeExecutive, in EmployeeExecutive’s unique and special capacity, with developing the goodwill of the Company Group, and as an express incentive for the Company to enter into this Agreement and employ Employee for Executive to be employed hereunder, Employee Executive has voluntarily agreed to the covenants set forth in this Section 107. Employee Executive agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee Executive undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.
(b) During While employed by the Prohibited PeriodCompany or any other member of the Company Group (whether pursuant to this Agreement or otherwise) and continuing for the Post-Separation Period (as defined below), Employee Executive agrees that Executive shall not, without the prior written approval of the Board, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage Be employed or engaged by, or otherwise provide services to, any Competitor in or participate within the Market Area in competition with any member of the Company Group in any aspect of the BusinessArea, including by which prohibition shall prevent Executive from directly or indirectly: (A) owning, managing, operating, or being an officer or director of, or being employed or engaged by, any Competitor;
(ii) Solicit, induce, or encourage, any member of the Company Group’s employees, consultants, business that competes customers, or partners, to: (A) cease or lessen their employment, engagement, or relationship with any member of the Company Group; or (B) alter their relationship with any member of the Company Group in a manner adverse to the Market AreaCompany Group; or
(iii) Hire any employee, consultant, business customer, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf partner of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meanings:
Appears in 2 contracts
Samples: Employment Agreement (REV Renewables, Inc.), Employment Agreement (REV Renewables, Inc.)
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Executive understands and recognizes that his services to the Company shall provide Employee are special and unique and that in the course of performing such services Executive will have access to and knowledge of Confidential and Proprietary Information for use only (as defined in Section 5) and Executive agrees that, during the Employment PeriodTerm, and Employee acknowledges and agrees that he shall not in any manner, directly or indirectly, on behalf of himself or any Person, enter into or engage in any business which is directly or indirectly competitive with the Company’s business, 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 Group will within the geographic area of the Company’s business, which is deemed by the parties hereto to be entrusting Employeeworldwide; provided, however, that if a Person’s business has multiple lines or segments, some of which are not competitive with the Company’s business, nothing herein shall prevent Executive from being employed by, working for or assisting that line or segment of a Person’s business that is not competitive with the Company’s business, Executive 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 Employee’s unique protecting the continuity of its business interests and special capacitythe restriction herein agreed to by Executive narrowly and fairly serves such an important and critical business interest of the Company. Notwithstanding foregoing, nothing contained in this Section 6(a) shall be deemed to prohibit Executive from acquiring or holding, solely for investment purposes, the securities of any corporation or other entity, some or all of the activities of which are competitive with developing the goodwill business of the Company Groupso long as such securities do not, and as an express incentive for in the Company to enter into this Agreement and employ Employee hereunderaggregate, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts constitute more than three percent (3%) of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interestsany class or series of outstanding securities of such corporation or other entity.
(b) During the Prohibited PeriodTerm and for a period of 12 months thereafter, Employee Executive shall not, directly or indirectly, without the prior written approval of the Board, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in or participate within the Market Area in competition with any member consent of the Company Group engage in any aspect Prohibited Solicitation. For purposes of this Agreement, a “Prohibited Solicitation” shall mean the Business, including by Executive’s (a) directly or indirectly: indirectly inducing or soliciting (Aor assisting any Person to induce or solicit) owningfor employment, managingother than pursuant to a general advertisement for employment not directed toward any single individual, operatingany person who is, or being within six (6) months prior to the date of such hiring, contacting, inducing or soliciting was, an officer or director of, any business that competes with any member employee of the Company Group in the Market Areaor any of its Affiliates, or (Bb) joiningdirectly or indirectly inducing or soliciting (or assisting any Person to induce or solicit) any customer, becoming an employee client or consultant vendor of, or otherwise being affiliated other person having a business relationship with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member or any of its Affiliates to terminate its relationship or otherwise cease doing business in whole or in part with the Company Group shall be entitled or any of its Affiliates, or directly or indirectly interfering with (or assist any Person to enforce interfere with) any relationship between the foregoing covenantsCompany or any of its Affiliates and any of their respective customers, in the event of a breach or threatened breachclients, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s vendors or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equitybusiness contacts.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meanings:
Appears in 2 contracts
Samples: Employment Agreement (Kite Pharma, Inc.), Employment Agreement (Kite Pharma, Inc.)
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The During the period in which you are employed by the Company shall provide Employee access to Confidential Information for use only during the Employment Period, and Employee acknowledges and agrees that and/or the Company Group will be entrusting Employee, in Employee’s unique and special capacity, for a period of one (1) year following the termination of your employment with developing the goodwill of the Company Group, and as an express incentive for and/or the Company to enter into this Agreement and employ Employee hereunderGroup for any reason or for no reason, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, you will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.
(b) During the Prohibited Period, Employee shall not, without the prior written approval consent of the BoardCompany and/or the Company Group, as applicable:
(i) Subject only to the terms of your Employment Agreement with the Company of even date herewith, for yourself or on behalf of any other person or entity, directly or indirectly, for Employee either as principal, partner, stockholder, officer, director, member, employee, consultant, agent, representative or in any other capacity, own, manage, operate, control or consult with or for, or be employed by, or otherwise associate in any manner with, engage in, or have an ownership or other financial interest in, any Competitive Business to provide the same type of services you provided to the Company or the Company Group (each, a “Restricted Activity”) anywhere in the United States where the Company or the Company Group’s business has reached at any time during your employment with the Company or the Company Group (the “Restricted Territory”), except that nothing contained herein will preclude you from purchasing or owning securities of any such business if such securities are publicly traded, and provided that your holdings do not exceed one percent (1%) of the issued and outstanding securities of any class of securities of such business; or
(ii) Either individually or on behalf of or in conjunction with through any third party, directly or indirectly, solicit, divert or appropriate or attempt to solicit, divert or appropriate any customer or other business partner of the Company or the Company Group (or any person or entity which was a customer or business partner, or a prospective customer or business partner with respect to which the Company and/or the Company Group has developed or made a sales presentation), with whom you had material contact during the period in which you were employed with the Company and/or the Company Group, for the purpose of any nature:
(i) engage in competing with the Company or participate within the Market Area in competition Company Group or reducing the Company’s or the Company Group’s relationship with any member customers or other business partners of the Company Group in or the Company Group; or
(iii) Either individually or on behalf of or through any aspect of the Businessthird party, including by directly or indirectly: (A) owning, managingemploy, operatinghire, cause to be employed or engaged, or being an officer solicit the employment or director of, the engagement as a consultant of any business that competes with any member employee of or consultant to the Company or the Company Group in while any such person is employed by or providing consulting services to the Market Area, Company or the Company Group or within six (B6) joining, becoming months after any such person ceases to be an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) solicitEither individually or on behalf of or through any third party, canvassdirectly or indirectly, approachinterfere with or attempt to interfere with, encourage, entice or induce any employee or contractor of any member of the relations between the Company and/or the Company Group and any vendor or supplier to terminate his, her the Company or its employment or engagement with any member of the Company Group.; or
(cv) Because During the course of your employment with the difficulty of measuring economic losses to Company and/or the Company Group as a result of a breach and at all times thereafter (notwithstanding the one year period noted above), you will not make any statement that is professionally or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of personally disparaging or defamatory about the Company Group for which they would have no other adequate remedy, the Company and each other member Group, any of the Company Group shall be entitled to enforce the foregoing covenantsits officers, in the event of a breach directors, shareholders or threatened breachemployees including, by injunctions and restraining orders from but not limited to, any court of competent jurisdictionstatement that disparages any person, without the necessity of showing any actual damages or that money damages would not afford an adequate remedyproduct, and without the necessity of posting any bond service, financing, financial condition, capability or other security. The aforementioned equitable relief shall not be aspect of the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to business or any of its officers, directors, shareholders or employees. You further agree that during the course of your employment with the Company and each other member and/or the Company Group you will not engage in any conduct that is intended to or has the result of inflicting harm upon the professional or personal reputation of the Company or the Company Group at law and equityor any of its officers, directors, shareholders or employees.
(dvi) The Company Group agrees and covenants in this that it shall take all corporate action within its power to cause its officers and directors to refrain from making any defamatory or disparaging remarks, comments, or statements concerning you during the term of your employment with the Company and/or the Company Group and at all times thereafter.
(vii) This Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof1(b) shall not affect the provisions of any other covenant (or portion thereof). Moreoverdoes not, in any way, restrict or impede the event parties from exercising protected rights to the extent that such rights cannot be waived by agreement or from complying with any arbitrator applicable law or regulation or a valid order of a court of competent jurisdiction shall determine that the scopeor an authorized government agency, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties provided that such restrictions be enforced to compliance does not exceed that required by the fullest extent which such arbitrator law, regulation, or court deems reasonable, and this Agreement shall thereby be reformedorder.
(e) The following terms shall have the following meanings:
Appears in 2 contracts
Samples: Employment Agreement (Novume Solutions, Inc.), Employment Agreement (Novume Solutions, Inc.)
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The You acknowledge that, in the course of your employment with the Company, you have and will continue to become familiar with the Company’s and the Company shall provide Employee access to Affiliates’ trade secrets and with other Confidential Information for use only concerning the Company and the Company Affiliates and that your services will be of special, unique and extraordinary value to the Company and the Company Affiliates. Therefore, you agree that, during the Employment Restriction Period (as defined in Section 9(b) below), and for a period of eighteen (18) months following such Restriction Period, and Employee acknowledges and agrees that you will not (x) anywhere the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill or any of the Company Group, and as an express incentive for Affiliates conducts business or (y) anywhere the Company or any of the Company Affiliates has spent time and resources in connection with expanding its business, directly or indirectly, either on your own behalf or on behalf of any other person, firm or entity:
(i) own, manage, operate, consult with, provide financing to, or join, control or participate in the ownership, management, operation or control of, any business wherever located (whether in corporate, proprietorship or partnership form or otherwise), if such business is engaged in the business of manufacturing, marketing, sale, research or development of pharmaceuticals for cancer utilizing a methodology or mechanism that is similar to enter into methodologies or mechanisms used by the Company (collectively, “Specified Therapies”); provided, however, that this Agreement and employ Employee hereunderSection 9(a)(i) shall not prohibit you from working, Employee has voluntarily agreed after the Restriction Period for an entity that engages in the manufacture, sale, marketing or distribution of pharmaceutical products so long as neither you nor such employer is involved in the manufacturing, marketing, sale or research or development of therapeutics or pharmaceuticals for any of the Specified Therapies; or
(ii) except as permitted by Section 7(e), say anything which is harmful to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts reputation of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interestsor any of the Company Affiliates or which could be reasonably expected to lead any person to cease to deal with the Company or any of the Company Affiliates on substantially equivalent terms to those previously offered or at all.
(b) During the Prohibited For purposes of this amended letter agreement, “Restriction Period, Employee shall not, without the prior written approval of the Board, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
” means (i) engage in or participate within the Market Area in competition with Employment Period and any member of other period during which you are employed by the Company Group in or any aspect of the Businessits Affiliates, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect whether pursuant to this clause (B)) in which Employee’s duties Agreement or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
otherwise, and (ii) appropriate any Business Opportunity ofa period of six months following your separation from employment, or relating to, any member regardless of the Company Group located in reason for your separation and whether caused by you or the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company GroupCompanye.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meanings:
Appears in 2 contracts
Samples: Employment Agreement (Tyme Technologies, Inc.), Employment Agreement (Tyme Technologies, Inc.)
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee access to Confidential Information for use only during the Employment Period, and Employee acknowledges and agrees that the Company Group will shall be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill of the Company Group, and in consideration thereof and in consideration of the Company providing Employee with access to Confidential Information and as an express incentive for the Company to enter into this Agreement and employ Employee hereunderEmployee, Employee has voluntarily agreed to the covenants set forth in this Section 109. Employee further agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope all respects and purpose in all respectsnot oppressive, do not interfere with public interests, will shall not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and substantial and legitimate business interests.
(b) During Employee agrees that, during the Prohibited Period, Employee shall not, without the prior written approval of the Board, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in or participate within the Market Area in competition with any member of the Company Group in any aspect of the Business, including by which prohibition shall prevent Employee from directly or indirectly: (A) indirectly owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an officer, director, employee or consultant of, or loaning money to, or selling or leasing equipment or real estate to or otherwise being affiliated with, with any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with the Company Group, including any customer or supplier who was a customer or supplier of any member of the Company GroupGroup during the 18 month period preceding the Termination Date; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group, including any employee or contractor who was an employee or contractor of any member of the Company Group during the 18 month period preceding the Termination Date.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 8 and in this Section 109, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity. In addition, Employee acknowledges that money damages would not be a sufficient remedy for any breach of this Section 9 by Employee, and the Company or the Company Group shall be entitled to enforce the provisions of this Section 9 by terminating payments then owing to Employee under this Agreement upon a good faith determination that Employee has breached Section 9 and by providing written notice to Employee setting forth the details of Employee’s alleged breach at least three (3) days prior to its termination of payments.
(d) The covenants in this Section 109, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The For purposes of this Section 9, the following terms shall have the following meanings:
Appears in 1 contract
Samples: Employment Agreement (Daseke, Inc.)
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee access to Confidential Information for use only during the Employment Period, and Employee acknowledges and agrees that the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill of the Company Group, and in consideration of the Company providing Employee with access to Confidential Information and as an express incentive for the Company to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.
(b) During the Prohibited Period, Employee shall not, without the prior written approval of the Board, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in or participate within the Market Area in competition with any member of the Company Group in any aspect of the Business, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) hire any employee or contractor of any member of the Company Group or solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The You acknowledge that, in the course of your employment with the Company, you will become familiar with the Company’s and the Company shall provide Employee access to Affiliates’ trade secrets and other Confidential Information for use only as well as the Company’s customer information and goodwill, and that your services will be of special, unique and extraordinary value to the Company and the Company Affiliates. Therefore, you agree that, during the Employment Period, Period and Employee acknowledges and agrees that any other period during which you are employed by the Company Group or any of its Affiliates, whether pursuant to this Agreement or otherwise plus twelve (12) months (the “Restriction Period”) (regardless of the reason for your separation from the Company and whether caused by you or the Company), you will be entrusting Employee, in Employee’s unique and special capacity, with developing not (x) anywhere the goodwill Company or any of the Company GroupAffiliates conducts business or (y) anywhere the Company or any of the Company Affiliates has spent time and resources in connection with expanding its business, and directly or indirectly, either on your own behalf or on behalf of any other person, firm or entity: own, manage, operate, work as an express incentive employee for, consult with, provide services or financing to, or join, control or participate in the ownership, management, operation or control of, any business (whether in corporate, proprietorship or partnership form or otherwise) that is engaged in the business of manufacturing, marketing, sale, research or development of pharmaceuticals for cancer utilizing a methodology or mechanism that is similar to methodologies or mechanisms used or actively being developed by the Company to enter into this Agreement and employ Employee hereunder(collectively, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests“Specified Therapies”).
(b) Nothing in Section 9(a) will prohibit you from being a passive owner of not more than 2% of the outstanding stock of a publicly-traded corporation, so long as you have no active participation in the business of such corporation.
(c) During the Prohibited Restriction Period, Employee shall you also will not, without the prior written approval of the Board, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in induce or participate within the Market Area in competition with attempt to induce any member customer, supplier or other business relation of the Company Group in or any aspect of the Business, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in Affiliates to cease doing business with the Market Area, Company or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group Affiliates, or in any capacity (way interfere with respect to this clause (B)) in which Employee’s duties the relationship between any such customer, supplier or responsibilities are business relation, on the same as one hand, and the Company or similar to the duties or responsibilities that Employee had on behalf of any member of the Company GroupAffiliates, on the other hand;
(ii) appropriate engage, employ, solicit or contact with a view to the engagement or employment of, any Business Opportunity employee, officer or manager of, or relating full-time consultant to, the Company or any member of the Company Group located Affiliates or any person who has been an employee, officer or manager of, or consultant to, the Company or any of the Company Affiliates, if he or she has been in such a role at any time within the Market Area;immediately prior three months; or
(iii) solicit, canvass, approach, encourage, entice assist any individual or induce any customer or supplier of any member of the Company Group entity to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, engage in the event of a breach or threatened breach, by injunctions conduct referenced in clauses (i) and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity(ii) immediately above.
(d) The covenants in this Notwithstanding anything herein to the contrary, Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof9(a) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and apply if this Agreement shall thereby be reformedis terminated within 30 days after the Effective Date by the Company without Cause or by you with or without Good Reason.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The In further consideration for the Buyer’s payment of the amounts to be paid to the Equityholder and Beneficial Owners under this Agreement and the Transaction Documents, and in order to protect the value of the Company shall provide Employee access to Confidential Information and the business acquired by the Buyer under this Agreement, each Beneficial Owner and Equityholder hereby agrees, for use only itself and on behalf of its owners and trustees, as applicable, that during the Employment period commencing on the Closing Date and ending on the fifth (5th) anniversary of the Closing Date (the “Restricted Period”), each Beneficial Owner and Equityholder shall not, and shall cause its respective Affiliates not to, directly or indirectly, acquire, engage or participate in (including by lending any Beneficial Owner’s name, providing financing, or owning or assisting another in), or hold any economic, financial or other interest (including equity or debt securities) in, act as a stockholder, partner, consultant, agent, employee, co-venturer, member or representative of, render any services to, or otherwise operate or hold an interest (whether an equity interest or otherwise) or enter the employ of, or render any services to, in any Person engaged or seeking to engage in (1) any business the same or similar to the Protected Business within the State of California (the “Restricted Territory”), or (2) the provision of business, management, marketing or other support services to any medical or other healthcare practice anywhere within the Restricted Territory; provided, that nothing contained herein shall be construed or prohibit the any Beneficial Owner or the Equityholder from purchasing up to an aggregate of two percent (2%) of any class of the outstanding voting securities of any other Entity whose securities are listed on a national securities exchange, so long as each Beneficial Owner, the Equityholder and their respective Affiliates do not participate in any way in the management or control of such Person.
(b) In further consideration for the Buyer’s payment of the amounts to be paid to the Equityholder and Beneficial Owners under this Agreement and the Transaction Documents, and in order to protect the value of the Company and the Protected Business, the Equityholder and Beneficial Owners hereby agree that during the Restricted Period, such Person shall not, directly or indirectly, hire, solicit, interfere with, induce or attempt to hire, solicit, interfere with or induce any (i) employee or contractor of the Protected Business, (ii) business relationship of the Protected Business to divert, reduce, adversely modify or terminate its business relationship with Buyer, its Subsidiaries or Affiliates (collectively, the “Buyer Parties”) or the Company or (iiv) planned or contemplated potential acquisition or investment candidates of any Buyer Parties or any Company.
(c) The Equityholder and Employee each Beneficial Owner hereby agrees that during the Restricted Period, such Person shall not make any negative comments or otherwise disparage the Company, Buyer Party or any of their respective Affiliates. Nothing herein or otherwise shall preclude Equityholder or any Beneficial Owner from making truthful statements that are necessary to comply with Applicable Law or Governmental Authority, or to defend or enforce such Person’s or the Company’s rights under this Agreement, any Transaction Document or any other agreement between or among the Parties.
(d) The Equityholder and each Beneficial Owner understands that the restrictions set forth in this Section 4.9 are intended to protect the interests of the Company and the Buyer Parties in the Company’s proprietary information, goodwill and established employee, customer, supplier, consultant and vendor relationships, and agree that such restrictions are reasonable and appropriate for this purpose. The Equityholder and each Beneficial Owner further acknowledges and agrees that the Company Group will time, scope, geographic area and other provisions of this Section 4.9 have been specifically negotiated by sophisticated parties and absent the Equityholder’s and each Beneficial Owner’s agreement to and compliance with the restrictions set forth in this Section 4.9, the Buyer would not have entered into the transactions contemplated by this Agreement or the Transaction Documents. The Restricted Period shall be entrusting Employee, extended with respect to the Equityholder and each Beneficial Owner by each day that such Person or its Affiliates is in Employeebreach of this Section 4.9. The Equityholder’s unique and special capacity, with developing the goodwill each Beneficial Owner’s obligations under this Section 4.9 are independent of any other obligation of the Company GroupCompany, Buyer Party or their respective Affiliates has to the Equityholder, including any such obligation under this Agreement.
(e) The Parties expressly agree that the subject matter, length of time, geographical scope, and range of activities, as an express incentive for applicable, contained in this Section 4.9 are reasonable in light of the Company to enter into circumstances as they exist on the date upon which this Agreement and employ Employee hereunderhas been executed. However, Employee has voluntarily agreed to should a determination nonetheless be made by a court of competent jurisdiction at a later date that the character, duration or geographical scope of the restrictive covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable 4.9 is unreasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.
(b) During the Prohibited Period, Employee shall not, without the prior written approval light of the Board, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in or participate within the Market Area in competition with any member of the Company Group in any aspect of the Business, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same circumstances as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonablethen exist, then it is the intention and the agreement of the parties Parties hereto that this Agreement shall be construed by the court in such a manner as to impose only those restrictions on the conduct of the Equityholder and each Beneficial Owner that may be enforced enforceable under Applicable Law, to the fullest extent which of such arbitrator or enforceability to assure the Buyer Parties of the intended benefit of this Agreement. If, in any judicial proceeding, a court deems reasonableshall refuse to enforce all of the separate covenants deemed included herein because, taken together, they are more extensive than necessary to assure the Buyer Parties of the intended benefit of this Agreement, it is expressly understood and this Agreement shall thereby agreed among the Parties hereto that those of such covenants that, if eliminated, would permit the remaining separate covenants to be reformedenforced in such proceeding shall, for the purpose of such proceeding, be deemed eliminated from the provisions hereof.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Samples: Stock Purchase Agreement (Apollo Medical Holdings, Inc.)
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The You acknowledge that, in the course of your employment with the Company, you will become familiar with the Company’s and the Company shall provide Employee access to Affiliates’ trade secrets and other Confidential Information for use only as well as the Company’s customer information and goodwill, and that your services will be of special, unique and extraordinary value to the Company and the Company Affiliates. Therefore, you agree that, during the Employment Period, Period and Employee acknowledges and agrees that any other period during which you are employed by the Company Group or any of its Affiliates, whether pursuant to this Agreement or otherwise plus twelve (12) months (the “Restriction Period”) (regardless of the reason for your separation from the Company and whether caused by you or the Company), you will be entrusting Employee, in Employee’s unique and special capacity, with developing not (x) anywhere the goodwill Company or any of the Company GroupAffiliates conducts business or (y) anywhere the Company or any of the Company Affiliates has spent time and resources in connection with expanding its business, and directly or indirectly, either on your own behalf or on behalf of any other person, firm or entity: own, manage, operate, work as an express incentive employee for, consult with, provide services or financing to, or join, control or participate in the ownership, management, operation or control of, any business (whether in corporate, proprietorship or partnership form or otherwise) that is engaged in the business of manufacturing, marketing, sale, research or development of pharmaceuticals for cancer utilizing a methodology or mechanism that is similar to methodologies or mechanisms used or actively being developed by the Company to enter into this Agreement and employ Employee hereunder(collectively, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests“Specified Therapies”).
(b) Nothing in Section 9(a) will prohibit you from being a passive owner of not more than 2% of the outstanding stock of a publicly-traded corporation, so long as you have no active participation in the business of such corporation.
(c) During the Prohibited Restriction Period, Employee shall you also will not, without the prior written approval of the Board, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in induce or participate within the Market Area in competition with attempt to induce any member customer, supplier or other business relation of the Company Group in or any aspect of the Business, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in Affiliates to cease doing business with the Market Area, Company or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group Affiliates, or in any capacity (way interfere with respect to this clause (B)) in which Employee’s duties the relationship between any such customer, supplier or responsibilities are business relation, on the same as one hand, and the Company or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;Affiliates, on the other hand; ACTIVE.125427969.08
(ii) appropriate engage, employ, solicit or contact with a view to the engagement or employment of, any Business Opportunity employee, officer or manager of, or relating full-time consultant to, the Company or any member of the Company Group located Affiliates or any person who has been an employee, officer or manager of, or consultant to, the Company or any of the Company Affiliates, if he or she has been in such a role at any time within the Market Area;immediately prior three months; or
(iii) solicit, canvass, approach, encourage, entice assist any individual or induce any customer or supplier of any member of the Company Group entity to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, engage in the event of a breach or threatened breach, by injunctions conduct referenced in clauses (i) and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity(ii) immediately above.
(d) The covenants in this Notwithstanding anything herein to the contrary, Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof9(a) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and apply if this Agreement shall thereby be reformedis terminated within 30 days after the Effective Date by the Company without cause or by you with or without Good Reason.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee access to Confidential Information for use only during the Employment Period, and Employee acknowledges and agrees that the members of the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill of the members of the Company Group, and in consideration of the Company providing Employee with access to Confidential Information and as an express incentive for the Company to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interestsinterests of each member of the Company Group.
(b) During the Prohibited Period, Employee shall not, without the prior written approval of the Board, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in or participate in or take other action that result in engagement or participation in the Business within the Market Area in competition with any member of the Company Group in any aspect of the BusinessArea, including by directly or indirectly: (A) owning, investing in, managing, controlling, participating in, consulting with, contributing to, lending one’s name to, providing assistance to, operating, or being an officer or director of, any business that competes with any member of the Company Group person or entity engaged in or preparing to engage in the Market AreaBusiness, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, or rendering services for, any person or entity engaged in, or planning to engage that has taken preparatory steps that result in engagement in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group or in any manner that requires Employee to learn of or use nonpublic, confidential, proprietary or trade secret information that is similar to the type of Confidential Information of which Employee learned or used at any member of the Company Group or in any manner that requires Employee to have client contacts or develop client relationships similar to the client contacts or the development of client relationships in which Employee engaged at any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group which or with whom Employee had contact, was involved as part of Employee’s job responsibilities (including oversight responsibility) with any member of the Company Group and/or about whom Employee learned Confidential Information to cease or lessen such customer’s or supplier’s business with any member of the Company Group; orGroup or otherwise adversely interference with the relationship between any member of the Company Group and such customer or supplier;
(iv) hire or engage any employee or contractor of any member of the Company Group with whom Employee had contact or solicit, canvass, approach, encourage, entice or induce any such employee or contractor of any member of the Company Group to terminate or reduce his, her or its employment or engagement with any member of the Company Group; or
(v) attempt to do any of the foregoing.
(c) Because of the difficulty of measuring economic losses to the members of the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformedreformed to make the restrictive covenants contained herein enforceable to maximum extent permitted by applicable law.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. In consideration of this offer of employment with the Company, of the compensation and benefits provided you under this Agreement (aincluding, without limitation, the Company’s promise to provide you with a grant of Company equity pursuant to the Plan) The Company shall provide Employee and your access to Confidential Information for use only during the Employment Periodcustomers, trade secrets and Employee acknowledges and agrees that the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill other confidential information of the Company Groupand its subsidiaries, and as an express incentive for the Company to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges you agree that the limitations and restrictions set forth herein, including geographical and temporal following restrictions on certain competitive activitiesyour activities during and after your employment are necessary, are appropriate and reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the goodwill, confidential information and other legitimate interests of the Company Group’s Confidential Information, goodwill and legitimate business interests.its subsidiaries and affiliates from unfair and inappropriate competition:
(bi) During the Prohibited PeriodRestricted Period (as defined below), Employee shall you will not, without the prior written approval of the Board, directly or indirectly, for Employee enter into or on behalf engage (in any capacity) (whether as an owner, employee, partner, independent contractor or otherwise, whether with or without compensation) directly or indirectly in any business which competes with the business of the Company or any of its subsidiaries or affiliates within any Restricted Territory. You acknowledge that the nature and scope of the Company’s business is international. As used in conjunction with any other person or entity of any nature:
this Agreement, the term “Restricted Territory” means (i) engage in the State of Connecticut, (ii) the states of New York, New Jersey and Massachusetts, (iii) every other state, territory or participate within the Market Area in competition with any member possession of the Company Group United States in any aspect of the Business, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity which you have engaged in, or planning to engage are engaging in, Company business (or business for Xxxxx Corporation prior to the Business in the Market Area in competition, or anticipated competition, with any member transaction) as of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf date of any member termination of the Company Group;
(ii) appropriate any Business Opportunity ofyour employment, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) solicitevery other state, canvassterritory or possession of the United States in which the Company (or Xxxxx Corporation) is conducting or has conducted business as of the date of termination of your employment, approachand (v) every other country in the world in which the Company (or Xxxxx Corporation) is conducting or has conducted business as of the date of termination of your employment; provided, encouragehowever, entice or induce any employee or contractor that ownership of less than 2% of the outstanding stock of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief publicly traded company shall not by itself be the Company’s or any other member deemed to be a violation of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equitythis provision.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. Non-Interference; and Remedies.
(a) The Company shall provide Employee Each Individual Limited Partner acknowledges and agrees, in connection with such Individual Limited Partner’s participation in the Partnership on the terms described in the Prior Partnership Agreement and this amendment and restatement of the terms of the Prior Partnership Agreement or, in the case of an Individual Limited Partner admitted to the Partnership subsequent to the date of the Prior Partnership Agreement, on the terms described herein and in such Individual Limited Partner’s Partner Agreement, if any, that: (i) the alternative asset management business (including, without limitation, for purposes of this paragraph, any hedge or private equity fund management business) is intensely competitive, (ii) such Partner, for the benefit of and on behalf of the Partnership in his capacity as a Partner, has developed, and will continue to develop and have access to and knowledge of, Confidential Information (including, but not limited to, material non-public information of the Och-Ziff Group and its Investors), (iii) the direct or indirect use of any such information for the benefit of, or disclosure of any such information to, any existing or potential competitors of the Och-Ziff Group would place the Och-Ziff Group at a competitive disadvantage and would do damage to the Och-Ziff Group, (iv) such Partner, for the benefit of and on behalf of the Partnership in his capacity as a Partner, has developed relationships with Investors and counterparties through investment by and resources of the Och-Ziff Group, while a Limited Partner of the Partnership, (v) such Partner, for the benefit of and on behalf of the Partnership in his capacity as a Partner, may continue to develop relationships with Investors and counterparties, through investment by and resources of the Och-Ziff Group, while a Limited Partner of the Partnership, (vi) such Partner engaging in any of the activities prohibited by this Section 2.13 would constitute improper appropriation and/or use only during of the Employment PeriodOch-Ziff Group’s Confidential Information and/or Investor and counterparty relationships, (vii) such Partner’s association with the Och-Ziff Group has been critical, and Employee such Partner’s association with the Och-Ziff Group is expected to continue to be critical, to the success of the Och-Ziff Group, (viii) the services to be rendered, and relationships developed, for the benefit of and on behalf of the Partnership in his capacity as a Partner, are of a special and unique character, (ix) the Och-Ziff Group conducts the alternative asset management business throughout the world, (x) the non-competition and other restrictive covenants and agreements set forth in this Agreement are fair and reasonable, and (xi) in light of the foregoing and of such Partner’s education, skills, abilities and financial resources, such Partner acknowledges and agrees that the Company Group such Partner will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill of the Company Groupnot assert, and as an express incentive for the Company to enter into this Agreement and employ Employee hereunderit should not be considered, Employee has voluntarily agreed to that enforcement of any of the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein2.13 would prevent such Partner from earning a living or otherwise are void, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interestsvoidable or unenforceable or should be voided or held unenforceable.
(b) During the Prohibited Restricted Period, Employee shall each Individual Limited Partner will not, without the prior written approval of the Board, directly or indirectly, for Employee either on his own behalf or on behalf of or in conjunction with any other person or entity of any naturePerson:
(i) without the prior written consent of the General Partner, (A) engage or otherwise participate in any manner or fashion in any Competing Business, (B) render any services to any Competing Business, or (C) acquire a financial interest in or become actively involved with any Competing Business (other than as a passive investor holding less than 2% of the issued and outstanding stock of public companies); or
(ii) in any manner solicit or induce any of the Och-Ziff Group’s current or prospective Investors to (A) terminate (or diminish in any material respect) his investments with the Och-Ziff Group for the purpose of associating or doing business with any Competing Business, or otherwise encourage such Investors to terminate (or diminish in any respect) his investments with the Och-Ziff Group for any other reason or (B) invest in or otherwise participate in or support any Competing Business.
(c) During the Restricted Period, each Individual Limited Partner will not, directly or indirectly, either on his own behalf or on behalf of or with any other Person:
(i) in any manner solicit or induce any of the Och-Ziff Group’s current, former or prospective financing sources, capital market intermediaries, consultants, suppliers, partners or other counterparties to terminate (or diminish in any material respect) his relationship with the Och-Ziff Group for the purpose of associating with any Competing Business, or otherwise encourage such financing sources, capital market intermediaries, consultants, suppliers, partners or other counterparties to terminate (or diminish in any respect) his relationship with the Och-Ziff Group for any other reason; or
(ii) in any manner interfere with the Och-Ziff Group’s business relationship with any Investors, financing sources, capital market intermediaries, consultants, suppliers, partners or other counterparties.
(d) During the Restricted Period, each Individual Limited Partner will not, directly or indirectly, either on his own behalf or on behalf of or with any other Person, in any manner solicit any of the owners, members, partners, directors, officers or employees of any member of the Och-Ziff Group to terminate their relationship or employment with the applicable member of the Och-Ziff Group, or hire any such Person (i) who is employed at the time of such solicitation by any member of the Och-Ziff Group, (ii) who is or was once an owner, member, partner, director, officer or employee of any member of the Och-Ziff Group as of the date of Special Withdrawal or Withdrawal of such Partner, or (iii) whose employment or relationship with any such member of the Och-Ziff Group terminated within the Market Area in competition 24-month period prior to the date of Special Withdrawal or Withdrawal of such Partner or thereafter. Additionally, the Partner may not solicit or encourage to cease to work with any member of the Company Och-Ziff Group in any aspect of consultant, agent or adviser that the Business, including by directly Partner knows or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes should know is under contract with any member of the Company Group in Och-Ziff Group.
(e) During the Market AreaRestricted Period and at all times thereafter, each Individual Limited Partner will not, directly or indirectly, make, or (B) joiningcause to be made, becoming an employee any written or consultant oforal statement, observation, or otherwise being affiliated with, any person opinion disparaging the business or entity engaged inreputation of the Och-Ziff Group, or planning to engage inany owners, the Business in the Market Area in competitionpartners, members, directors, officers, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf employees of any member of the Company Och-Ziff Group; provided, however, that nothing contained in this Section 2.13 shall preclude such Partner from providing truthful testimony in response to a valid subpoena, court order, regulatory request, or as may be otherwise required by law, or from participating or cooperating in any action, investigation or proceeding with, or providing truthful information to, any governmental agency, legislative body, self-regulatory organization, or the legal departments of the Och-Ziff Group.
(f) Each Individual Limited Partner acknowledges and agrees that an attempted or threatened breach by such Person of this Section 2.13 would cause irreparable injury to the Partnership and the other members of the Och-Ziff Group not compensable in money damages and the Partnership shall be entitled, in addition to the remedies set forth in Sections 2.13(g) and 2.13(i), to obtain a temporary, preliminary or permanent injunction prohibiting any breaches of this Section 2.13 without being required to prove damages or furnish any bond or other security.
(g) Each Individual Limited Partner agrees that it would be impossible to compute the actual damages resulting from a breach of Section 2.13(b) or, if applicable, any of the non-competition covenants provided in such Partner’s Partner Agreement, and that the amounts set forth in this Section 2.13(g) are reasonable and do not operate as a penalty, but are a genuine pre-estimate of the anticipated loss that the Partnership and other members of the Och-Ziff Group would suffer from a breach of Section 2.13(b) or, if applicable, of any of the non-competition covenants provided in such Partner’s Partner Agreement. In the event an Individual Limited Partner breaches Section 2.13(b) or, if applicable, any of the non-competition covenants provided in such Partner’s Partner Agreement, then:
(i) on or after the date of such breach, any unvested Class A Common Units of such Partner and its Related Trusts, if any, shall cease to vest and thereafter shall be reallocated in accordance with this Section 2.13(g);
(ii) appropriate any Business Opportunity ofon or after the date of such breach, or relating tono allocations shall be made to the respective Capital Accounts of such Partner and its Related Trusts, any member of the Company Group located in the Market Areaif any, and no distributions shall be made to such Partners;
(iii) soliciton or after the date of such breach, canvass, approach, encourage, entice or induce no Transfer (including any customer or supplier exchange pursuant to the Exchange Agreement) of any member of the Company Group Class A Common Units of such Partner or its Related Trusts, if any, shall be permitted under any circumstances notwithstanding anything to cease or lessen such customer’s or supplier’s business with any member of the Company Group; orcontrary in this Agreement;
(iv) soliciton or after the date of such breach, canvassno sale, approachexchange, encourageassignment, entice pledge, hypothecation, bequeath, creation of an encumbrance, or induce any employee other transfer or contractor disposition of any member kind may be made of any of the Company Group to terminate his, her Class A Shares acquired by such Partner or its employment or engagement with any member Related Trusts, if any, through an exchange pursuant to the Exchange Agreement;
(v) as of the Company Groupapplicable Reallocation Date, all of the unvested and vested Class A Common Units of such Partner and its Related Trusts, if any, and all allocations and distributions on such Class A Common Units that would otherwise have been received by such Partners on or after the date of such breach shall be reallocated from such Partners to the Continuing Partners in proportion to the total number of Original Common Units owned by each such Continuing Partner and its Original Related Trusts;
(vi) each of such Partner and its Related Trusts, if any, agrees that, on the Reallocation Date, it shall immediately:
(A) pay to the Continuing Partners, in proportion to the total number of Original Common Units owned by each such Continuing Partner and its Original Related Trusts, a lump-sum cash amount equal to the sum of: (i) the total after-tax proceeds received by such Individual Limited Partner or Related Trust thereof for any Class A Shares acquired at any time pursuant to the Exchange Agreement and that were subsequently transferred during the 24-month period prior to the date of such breach; and (ii) any distributions received by such Individual Limited Partner or Related Trust thereof during such 24-month period on Class A Shares acquired pursuant to the Exchange Agreement;
(B) transfer any Class A Shares that were acquired at any time pursuant to the Exchange Agreement and held by such Individual Limited Partner or Related Trust thereof on and after the date of such breach to the Continuing Partners in proportion to the total number of Original Common Units owned by each such Continuing Partner and its Original Related Trusts; and
(C) pay to the Continuing Partners in proportion to the total number of Original Common Units owned by each such Continuing Partner and its Original Related Trusts a lump-sum cash amount equal to the sum of: (i) the total after-tax proceeds received by such Individual Limited Partner or Related Trust thereof for any Class A Shares acquired at any time pursuant to the Exchange Agreement and that were subsequently transferred on or after the date of such breach; and (ii) all distributions received by such Individual Limited Partner or Related Trust thereof on or after the date of such breach on Class A Shares acquired pursuant to the Exchange Agreement; and
(vii) such Partner and its Related Trusts agrees that he shall receive no payments, if any, that he would have otherwise received under the Tax Receivable Agreement on or after the date of such breach, and shall have no further rights under the Tax Receivable Agreement, Exchange Agreement or Registration Rights Agreement after such date. Any reallocated Class A Common Units received by a Continuing Partner pursuant to this Section 2.13(g) shall be deemed for all purposes of this Agreement to be Common Units of such Continuing Partner and subject to the same vesting requirements, if any, in accordance with Section 8.4 as the transferring Limited Partner had been before his breach of Section 2.13(b) or, if applicable, of the relevant non-competition covenants provided in such Partner’s Partner Agreement. Any Continuing Partner receiving reallocated Class A Common Units pursuant to this Section 2.13(g) shall be permitted to exchange fifty percent (50%) of such number of Class A Common Units (and sell any Class A Shares issued in respect thereof), notwithstanding the transfer restrictions set forth in Section 8.1 in the event that the Exchange Committee (as defined in the Exchange Agreement) determines in its sole discretion that the reallocation is taxable; provided, however, that such exchange of Class A Common Units is made in accordance with the Exchange Agreement.
(ch) Because Notwithstanding anything in Section 2.13(g) to the contrary, the General Partner may elect in its sole and absolute discretion to waive the application of any portion, all or none of the difficulty provisions of measuring economic losses Section 2.13(g) in the case of the breach by any Partner of Section 2.13(b) or, if applicable, of the relevant non-competition covenants provided in such Partner’s Partner Agreement.
(i) Without limiting the right of the Partnership to the Company Group as a result of a breach obtain injunctive relief for any attempted or threatened breach of the covenants set forth in Section 9 and in this Section 102.13, and because in the event a Partner breaches Section 2.13(c), (d) or (e), then at the election of the immediate General Partner in its sole and irreparable damage that would be caused to absolute discretion the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group Partnership shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or seek any other member available remedies including, but not limited to, an award of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equitymoney damages.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Samples: Agreement of Limited Partnership
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee Executive access to Confidential Information for use only during the Employment Period, and Employee Executive acknowledges and agrees that the Company Group will be entrusting EmployeeExecutive, in EmployeeExecutive’s unique and special capacity, with developing the goodwill of the Company Group, and in consideration of the Company providing Executive with access to Confidential Information and as an express incentive for the Company to enter into this Agreement and employ Employee Executive hereunder, Employee Executive has voluntarily agreed to the covenants set forth in this Section 108. Employee Executive agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee Executive undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.
(b) During the Prohibited Period, Employee Executive shall not, without the prior written approval of the Board, directly or indirectly, for Employee Executive or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in or participate within the Market Area in any Business in competition with any member of the Company Group in any aspect of the BusinessGroup, including by which prohibition shall prevent Executive from directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business Business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which EmployeeExecutive’s duties or responsibilities responsibilities: (x) are the same as or similar to the duties or responsibilities that Employee Executive had on behalf of any member of the Company Group, or (y) involve direct or indirect oversight of, or responsibility for, duties or responsibilities that are the same or similar to the duties or responsibilities that Executive had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group with whom or which Executive had contact on behalf of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group.
(c) Notwithstanding the foregoing, it shall not be a violation of Section 8(b)(i) above for Executive to hold, as a passive investment, up to five percent (5%) of (i) the publicly traded securities of any company, or (ii) the equity or other interests in a privately held entity that engages in the Business so long as, in each instance, Executive does not have the power to direct or control the applicable entity.
(d) Further notwithstanding the foregoing, following the Date of Termination, the above-referenced limitations in Sections 8(b)(i), (ii) and (iii) shall not apply in those portions of the Market Area located within the State of Oklahoma. Instead, Employee agrees that, following the Date of Termination, the restrictions on Employee’s activities within those portions of the Market Area located within the State of Oklahoma (in addition to those restrictions set forth in Section 6 and Section 8(b)(iv) above) shall be as follows: during that portion of the Prohibited Period that follows the Date of Termination, Employee will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company or any other member of the Company Group.
(e) Executive agrees not to disparage any member of the Company Group or any of such entities’ respective affiliates, officers, directors, employees or shareholders in any manner intended or reasonably likely to be harmful to them, their business, business reputation or personal reputation. Nothing in this Agreement shall preclude Executive from making disclosures permitted by Section 6(e) above, including making truthful statements or disclosures that are required by applicable law, regulation or legal process, or from filing a charge with, reporting possible violations to, or participating or cooperating with the Securities and Exchange Commission or any other federal, state or local regulatory body or law enforcement agency, including in relation to any whistleblower, anti-discrimination, or anti-retaliation provisions of federal, state or local law or regulation.
(f) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 6, Section 7 and in this Section 108, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(dg) The covenants in this Section 108, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(eh) The following terms shall have the following meanings:
Appears in 1 contract
Samples: Employment Agreement (Ranger Energy Services, Inc.)
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Executive understands and recognizes that his services to the Company shall provide Employee are special and unique and that in the course of performing such services Executive will have access to and knowledge of Confidential and Proprietary Information for use only (as defined in Section 5) and Executive agrees that, during the Employment PeriodTerm and for a period of 9 months thereafter, and Employee acknowledges and agrees he shall not in any manner, 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 that is directly or indirectly competitive with the 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 Group will within the geographic area of the Company’s Business, which is deemed by the parties hereto to be entrusting Employeeworldwide; provided, however, that if a Person’s business has multiple lines or segments, some of which are not competitive with the Company’s Business, nothing herein shall prevent Executive from being employed by, working for or assisting that line or segment of a Person’s business that is not competitive with the Company’s Business. Executive 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 legitimate business interest in Employeeprotecting the continuity of its business interests and the restriction herein agreed to by Executive narrowly and fairly serves such an important and critical business interest of the Company. For the purposes of this paragraph “Company’s unique and special capacityBusiness” is defined as development of an anti-progestin for the use in oncology. Notwithstanding the foregoing, nothing contained in this Section 6(a) shall be deemed to prohibit Executive from acquiring or holding, solely for investment purposes, the securities of any corporation or other entity, some or all of the activities of which are competitive with developing the goodwill business of the Company Groupso long as such securities do not, and as an express incentive for in the Company to enter into this Agreement and employ Employee hereunderaggregate, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts constitute more than three percent (3%) of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interestsany class or series of outstanding securities of such corporation or other entity.
(b) During the Prohibited PeriodTerm and for a period of 12 months thereafter, Employee Executive shall not, directly or indirectly, without the prior written approval of the Board, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in or participate within the Market Area in competition with any member consent of the Company Group engage in any aspect Prohibited Solicitation. For purposes of this Agreement, a “Prohibited Solicitation” shall mean the Business, including by Executive’s (a) directly or indirectly: indirectly hiring, contacting, inducing or soliciting (Aor assisting any Person to hire, contact, induce or solicit) owning, managing, operatingfor employment any person who is, or being within six (6) months prior to the date of such hiring, contacting, inducing or soliciting was, an officer or director of, any business that competes with any member employee of the Company Group in the Market Areaor any of its Affiliates, or (Bb) joiningdirectly or indirectly inducing or soliciting (or assisting any Person to induce or solicit) any customer, becoming an employee client or consultant vendor of, or otherwise being affiliated other person having a business relationship with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member or any of its Affiliates to terminate its relationship or otherwise cease doing business in whole or in part with the Company Group shall be entitled or any of its Affiliates, or directly or indirectly interfering with (or assist any Person to enforce interfere with) any relationship between the foregoing covenantsCompany or any of its Affiliates and any of their respective customers, in the event of a breach or threatened breachclients, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s vendors or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equitybusiness contacts.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee access to Confidential Information for use only during You acknowledge and recognize the Employment Period, and Employee acknowledges and agrees that highly competitive nature of the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill businesses of the Company Groupand its affiliates and accordingly agree as follows:
(i) You will not, during a period immediately following the termination of Your employment equal to 12 months (regardless of whether or not You are receiving severance payments and benefits during such period) (the “Post-Termination Period”) or during the remainder of Your employment (collectively, with the Post-Termination Period, the “Restricted Period”), directly or indirectly, in any capacity, compete with, be employed or engaged by, have a financial interest in any capacity other than as a passive investor of less than 5% of the outstanding stock of any public corporation, advise, lend Your name to or otherwise be involved in, provide services to or participate in any business which competes with the businesses of the Company and its affiliates in respect of which You had received proprietary or confidential information within the geographic areas in which business is conducted by the Company or any of its affiliates (including, without limitation, North America, Europe, Russia, the Middle East, Africa, China, India, Japan, Korea, Thailand, Indonesia, Singapore, Australia and South America and businesses and geographies which the Company or its affiliates have specific plans to conduct in the future and as an express incentive to which the Participant is aware of such planning).
(ii) During the Restricted Period, You shall not solicit, attempt to solicit or communicate in any way with employees of the Company or any of its affiliates for the purpose of having such employees employed or in any way engaged by another person, firm, corporation or other entity.
(iii) During the Restricted Period, You shall not, directly or indirectly, solicit, attempt to solicit, call upon or accept the business of any firm, person or company who is or was a customer, client or supplier of any business of the Company and its affiliates in respect of which You had received proprietary or confidential information if such solicitation or acceptance of business could result in the diversion of business away from the Company or any such affiliate or operate to enter into this Agreement prejudice the Company or any such affiliate.
(iv) During the remainder of Your employment and employ Employee hereunderat all times thereafter, Employee has voluntarily agreed You also agree not to make any public statements or public comments intended to be (or having the effect of being) of a defamatory or disparaging nature (including any statements or comments reasonably likely to be harmful to the covenants set forth business, business reputation or personal reputation of) regarding the Company or any of its affiliates or any such person’s businesses, shareholders, agents, officers, directors or contractors (it being understood that comments made in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do Your good faith performance of Your duties hereunder shall not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts be deemed disparaging or defamatory for purposes of this Agreement intended and necessary Agreement); provided that You shall be permitted to prevent unfair competition and to protect the Company Group’s Confidential Informationmake truthful disclosures that are required by applicable law, goodwill and legitimate business interestsregulations or order of a court or government agency.
(b) During It is expressly understood and agreed that although You and the Prohibited PeriodCompany consider the restrictions contained in this Section 11 to be reasonable, Employee if a final judicial determination is made by a court of competent jurisdiction, that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against You, the provisions of this Agreement shall notnot be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, without if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the prior written approval enforceability of any of the Board, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in or participate within the Market Area in competition with any member of the Company Group in any aspect of the Business, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Grouprestrictions contained herein.
(c) Because The period of time during which the difficulty provisions of measuring economic losses to this Section 11 shall be in effect shall be extended by the Company Group as a result length of a breach or threatened time during which You are in breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, terms hereof as determined by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be jurisdiction on the Company’s or any other member of the Company Group’s exclusive remedy application for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equityinjunctive relief.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide For the reasons and consideration specified in Section 8, Employee access to Confidential Information for use only hereby covenants and agrees that, during the Employment Period, and Employee acknowledges and agrees that the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill Term of the Company Group, and as an express incentive for the Company to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.
(b) During the Prohibited PeriodNon-Competition, Employee shall not, without the prior written approval of the Board, directly or indirectly, for Employee individually or on behalf of as an officer, director, manager, employee, stockholder, consultant, contractor, partner, member, joint venturer, agent, equity owner or in conjunction with any other person or entity of any naturecapacity whatsoever:
(i) engage in or participate within the Market Area in competition with any member of the Company Group in any aspect of the Businessown, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business manage, operate, join, control, be employed by, provide Competing Services to, or participate in the Market Area ownership, management, operation or control of or provision of Competing Services to, a Competing Business operating in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company GroupGeographic Area;
(ii) appropriate any Business Opportunity ofrecruit, hire, assist in hiring, attempt to hire, or relating tocontact or solicit with respect to hiring any Person who, at any member time during the 12 month period ending on the Date of Termination, was an employee of the Company; provided, that Employee may hire any Person that served as an administrative assistant or clerical employee at the time Employee’s employment with the Company Group located in the Market Areaterminates;
(iii) solicit, canvass, approach, encourage, entice induce or attempt to induce any customer or supplier of any member employee of the Company Group to cease terminate, or lessen such customer’s or supplier’s business with in any member of way interfere with, the relationship between the Company Groupand any employee thereof; or
(iv) solicit, canvass, approach, encourage, entice induce or attempt to induce any employee customer, client, patient, supplier, service provider, or contractor of any member other business relation of the Company Group in the Geographic Area to terminate hiscease doing business with the Company, her or its employment or engagement in any way interfere with the relationship between the Company and any member such Person. Notwithstanding the foregoing, the Company agrees that Employee may own less than one percent of the outstanding voting securities of any publicly traded company that is a Competing Business so long as Employee does not otherwise participate in such competing business in any way prohibited by this Section 10. This Section 10(a) shall not apply in the event Company Groupbreaches any of its obligations under Section 5 or 6.
(b) Employee shall not make any negative or disparaging comments regarding the Company, its Subsidiaries or Affiliates or any of their respective officers, directors, shareholders, partners, members, managers, agents or employees (collectively, the “Representatives”), including regarding the performance of the Company, its Subsidiaries or Affiliates, or otherwise take any action that could reasonably be expected to adversely affect the Company, its Subsidiaries or Affiliates or the personal or professional reputation of any of their respective Representatives. Information required to be disclosed by Employee pursuant to any applicable law, court order, subpoena, process or governmental decree shall not constitute a violation or breach of this Section 10(b); provided, that Employee delivers written notice of such required disclosure to the Company promptly before making such disclosure if such notice is not prohibited by applicable law, court order, subpoena, process or governmental decree.
(c) Because Employee acknowledges that the geographic boundaries, scope of prohibited activities, and time duration of the difficulty preceding paragraphs in this Section 10 (including the defined terms for “Competing Business,” “Geographic Area,” and “Term of measuring economic losses Non-Competition” set forth in Section 1) are reasonable in nature and are no broader than are necessary to maintain the goodwill of the Company Group and the confidentiality of its Confidential Information and to protect the goodwill and other legitimate business interests of the Company, and also that the enforcement of such covenants would not cause Employee any undue hardship or unreasonably interfere with Employee’s ability to earn a livelihood. If Employee violates the covenants and restrictions in this Section 10 and the Company brings legal action for injunctive or other equitable relief, Employee agrees that the Company shall not be deprived of the benefit of the full period of the restrictive covenant, as a result of a breach or threatened breach of the covenants set forth time involved in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meanings:obtaining such
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee access to Confidential Information for use only a. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Employer and its affiliates and accordingly agrees that, during the Employment PeriodTerm and, and Employee acknowledges and agrees that for a period of one year following any termination of Executive's employment with the Company Group (the "Restricted Period"), Executive will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill of the Company Group, and as an express incentive for the Company to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.
(b) During the Prohibited Period, Employee shall not, without the prior written approval of the Board, directly or indirectly, for Employee whether on Executive's own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other person business organization, entity or entity enterprise whatsoever ("Person"), directly or indirectly engage in any business that directly or indirectly competes in any material way with the primary business of any nature:the Company, or otherwise engage in competition with the Company which is materially detrimental to the Company;
(i) engage During the Restricted Period, Executive will not, whether on Executive's own behalf or on behalf of or in or participate within the Market Area in competition conjunction with any member Person, directly or indirectly:
(A) solicit or encourage any employee of the Company Group in any aspect of or its affiliates to leave the Business, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member employment of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Groupits affiliates; or
(ivB) solicit, canvass, approach, encourage, entice hire any such employee who was employed by the Company or induce any employee its affiliates as of the date of Executive's termination of employment with the Company or contractor of any member who left the employment of the Company Group to terminate his, her or its affiliates coincident with, or within one year prior to or after, the termination of Executive's employment with the Company.
b. Executive shall not at any time issue any press release or engagement with make any member public statement about the Company or any director, officer, employee, successor, parent, subsidiary or agent or representative of, or attorney to the Company (any of the foregoing, a "Company Group.
Affiliate") regarding (i) any of the foregoing's financial status, business, services, business methods, compliance with laws, or ethics or otherwise, or (ii) regarding Company partners, personnel, directors, officers, employees, attorneys, agents, including, without limitation, in respect of both clauses (i) and (ii), any statement that is intended or reasonably likely to disparage the Company or any Company Affiliate, or otherwise degrade any Company Affiliate's reputation in the business, industry or legal community in which any such Company Affiliate operates and, the Company shall not at any time issue any press release or make any public statement about Executive or his spouse that is intended or reasonably likely to disparage Executive's reputation in the business, industry or legal community or otherwise degrade his or her reputation or standing in their community; provided, that, Executive and the Company shall be permitted to (a) make any statement that is required by applicable securities or other laws to be included in a filing or disclosure document, subject to prior notice to the other thereof, and (b) defend himself or itself against any statement made by the other party that is intended or reasonably likely to disparage or otherwise degrade that party's reputation, only if there is a reasonable belief that the statements made in such defense are not false statements and (c) Because of the difficulty of measuring economic losses to provide truthful testimony in any legal proceeding.
c. It is expressly understood and agreed that although Executive and the Company Group as a result of a breach or threatened breach of consider the covenants set forth in Section 9 and restrictions contained in this Section 108 to be reasonable, and because if a final judicial determination is made by a court of competent jurisdiction that the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no time or territory or any other adequate remedyrestriction contained in this Agreement is an unenforceable restriction against Executive, the Company and each other member provisions of the Company Group this Agreement shall not be rendered void but shall be entitled deemed amended to enforce the foregoing covenantsapply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, in the event of a breach or threatened breach, by injunctions and restraining orders from if any court of competent jurisdiction, without the necessity of showing jurisdiction finds that any actual damages or that money damages would not afford an adequate remedyrestriction contained in this Agreement is unenforceable, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall such restriction cannot be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition amended so as to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(d) The covenants in this Section 10make it enforceable, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) such finding shall not affect the provisions enforceability of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such other restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformedcontained herein.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee access to Confidential Information In further consideration for use only during the Employment Period, and Employee acknowledges and agrees that the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill Buyer Parties’ payment of the Company Group, and as an express incentive for amounts to be paid to the Company to enter into Equityholders under this Agreement and the Transaction Documents, and in order to protect the value of the Group Companies and the business, including its goodwill, acquired by the Buyer Parties under this Agreement, each Equityholder hereby agrees, for itself and on behalf of its owners, as applicable, that, during the period commencing on the applicable Closing Date and ending on the fifth (5th) anniversary of the Initial Closing Date (the “Restricted Period”), each Equityholder shall not, and shall cause its Affiliates not to, directly or indirectly, acquire, engage or participate in (including by lending the Equityholder’s name, providing financing, or owning or assisting another in), hold any economic, financial or other interest (including equity or debt securities) in, act as a stockholder, partner, consultant, agent, employee, co-venturer, member or representative of, render any services to, otherwise operate or hold an interest (whether an equity interest or otherwise) in, enter the employ Employee hereunderof, Employee has voluntarily agreed or render any services to, any Person engaged or seeking to engage in any business the same or similar to the Protected Business as of the Closing Date within the State of California (the “Restricted Territory”); provided, that nothing contained herein shall be construed as prohibiting or prohibit the Equityholders from engaging in such restricted activities on behalf of, or for the benefit of, any Buyer Party or purchasing up to an aggregate of two percent (2%) of any class of the outstanding voting securities of any other Entity whose securities are listed on a national securities exchange, so long as the Equityholders and their respective Affiliates do not participate in any way in the management or control of such Person.
(b) In further consideration for the Buyer Parties’ payment of the amounts to be paid to the Equityholders under this Agreement and the Transaction Documents, and in order to protect the value of the Group Companies and the Protected Business, the Equityholders (on his, her or their behalf) hereby agree that during the Restricted Period, the Equityholders shall not, directly or indirectly, solicit, interfere with, induce or attempt to solicit, interfere with or induce any (i) referral source or patient of the Protected Business, (ii) employee or contractor of the Protected Business, (iii) business relationship of the Protected Business to divert, reduce, adversely modify or terminate its business relationship with any Buyer Party or any Group Company or (iv) planned or contemplated potential acquisition or investment candidates of any Buyer Parties or any Group Companies.
(c) The Equityholders hereby agree that, during the Restricted Period, the Equityholders shall not make any negative comments or otherwise disparage any Group Company, Buyer Party or any of their respective Affiliates as of the date of the applicable Closing. Nothing herein or otherwise shall preclude any Equityholder from making truthful statements that are necessary to comply with Applicable Law or Governmental Authority, or to defend or enforce such Person’s or any Group Company’s rights under this Agreement, any Transaction Document or any other agreement between or among the Parties.
(d) The Equityholders understand that the restrictions set forth in this Section 6.16 are intended to protect the interests of the Group Companies, Buyer Parties and their respective Affiliates in the Group Companies’ proprietary information, goodwill and established employee, customer, supplier, consultant and vendor relationships, and agree that such restrictions are reasonable and appropriate for this purpose. The Equityholders further acknowledge and agree that the time, scope, geographic area and other provisions of this Section 6.16 have been specifically negotiated by sophisticated parties and absent the Equityholders’ agreement to and compliance with the restrictions set forth in this Section 6.16, the Buyer Parties would not have entered into the transactions contemplated by this Agreement or the Transaction Documents. The Restricted Period shall be extended with respect to any particular Equityholder by each day that such Equityholder, as applicable, is in breach of this Section 6.16. The Equityholders’ obligations under this Section 6.16 are independent of any other obligation of any Group Company, Buyer Party or their respective Affiliates has to the Equityholders, including any such obligation under this Agreement.
(e) The Parties expressly agree that the subject matter, length of time, geographical scope, and range of activities, as applicable, contained in this Section 6.16 are reasonable in light of the circumstances as they exist on the date upon which this Agreement has been executed. However, should a determination nonetheless be made by a court of competent jurisdiction at a later date that the character, duration or geographic scope of the restrictive covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable 6.16 is unreasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.
(b) During the Prohibited Period, Employee shall not, without the prior written approval light of the Board, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in or participate within the Market Area in competition with any member of the Company Group in any aspect of the Business, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same circumstances as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonablethen exist, then it is the intention and the agreement of the parties Parties hereto that this Agreement shall be construed by the court in such a manner as to impose only those restrictions on the conduct of the Equityholders that may be enforced enforceable under Applicable Law, to the fullest extent which of such arbitrator or enforceability to assure the Buyer Parties of the intended benefit of this Agreement. If, in any judicial proceeding, a court deems reasonableshall refuse to enforce all of the separate covenants deemed included herein because, taken together, they are more extensive than necessary to assure the Buyer Parties of the intended benefit of this Agreement, it is expressly understood and this Agreement shall thereby agreed among the Parties hereto that those of such covenants that, if eliminated, would permit the remaining separate covenants to be reformedenforced in such proceeding shall, for the purpose of such proceeding, be deemed eliminated from the provisions hereof.
(ef) The following terms For the avoidance of doubt, nothing in this Section 6.16 shall have restrict the following meanings:ability of the Equityholders to own or manage the Plan Companies and operate the Plan Business during the period between the date of this Agreement and the Second Closing. Additionally, in the event that the Second Closing does not occur, this Section 6.16 shall in no way restrict the Equityholders’ ownership and management of the Plan Companies or operation of the Plan Business.
Appears in 1 contract
Samples: Asset and Equity Purchase Agreement (Apollo Medical Holdings, Inc.)
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee access to Confidential Information for use only during the Employment Period, and Employee Participant acknowledges and agrees that recognizes the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing highly competitive nature of the goodwill businesses of the Company Groupand its Affiliates and Subsidiaries, and accordingly agrees as an express incentive for the Company to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.follows:
(bi) During the Prohibited Participant’s employment with the Company or its Affiliates or Subsidiaries (the “Employment Term”) and for a period of one year following the date the Participant ceases to be employed by the Company or its Affiliates or Subsidiaries (the “Restricted Period”), Employee shall the Participant will not, without whether on the prior written approval of the Board, directly or indirectly, for Employee Participant’s own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other person business organization, entity or entity enterprise whatsoever (for the purposes of this Appendix A, a “Person”), directly or indirectly solicit or assist in soliciting the business of any nature:
(i) engage in then-current or participate within the Market Area in competition with any member of the Company Group in any aspect of the Business, including by directly prospective client or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf customer of any member of the Company Restricted Group in competition with the Restricted Group in the Business. indirectly:
(ii) During the Restricted Period, the Participant will not directly or
(A) engage in the Business anywhere in the United States, or in any geographical area that is within 100 miles of any geographical area where the Restricted Group engages in the Business, including, for the avoidance of doubt, by entering into the employment of or rending any services to a Core Competitor, except where such employment or services do not relate in any manner to the Business;
(B) acquire a financial interest in, or otherwise become actively involved with, any Person engaged in the Business, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; or
(C) intentionally and adversely interfere with, or attempt to adversely interfere with, business relationships between the members of the Restricted Group and any of their clients, customers, suppliers, partners, members or investors.
(iii) Notwithstanding anything to the contrary in this Appendix A, the Participant may, directly or indirectly own, solely as an investment, securities of any Person engaged in a Business (including, without limitation, a Core Competitor) which are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which controls, such person and (ii) does not, directly or indirectly, own 2% or more of any class of securities of such Person. 001366-0005-13471-Active.14089300.1001366-0005-13471-Active.14089300.1 Appendix A- PAGE 519Appendix A-19
(iv) During the Employment Term and the Restricted Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(A) solicit or encourage any employee of the Restricted Group to leave the employment of the Restricted Group;
(iiB) appropriate hire any Business Opportunity ofexecutive-level employee, key personnel, or relating tomanager- level employee (i.e., any member operations manager or district sales manager) who was employed by the Restricted Group as of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member date of the Participant’s termination of employment with the Company Group to cease or lessen such customer’s or supplier’s business with any member who left the employment of the Company GroupRestricted Group coincident with, or within one year prior to or after, the termination of the Participant’s employment with the Company; or
(ivC) solicit, canvass, approach, encourage, entice or induce encourage any employee or contractor of any member consultant of the Company Restricted Group to terminate his, her or its employment or engagement cease working with any member of the Company Restricted Group.
(cv) Because For purposes of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meaningsAgreement:
Appears in 1 contract
Samples: Nonqualified Stock Option Agreement (Vivint Solar, Inc.)
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee access As additional consideration to Confidential Information Flagship for use only entering this Agreement, the Executive covenants that during the Employment PeriodRestricted Period (as defined below), he shall not:
(i) Compete against any Flagship/Parent Company Affiliate, either directly or indirectly, by taking employment, gratuitously assisting or serving as an independent contractor, consultant, partner, director or officer with a competitor of any Flagship/Parent Company Affiliate, or starting his own business that would compete directly or indirectly with any Flagship/Parent Company Affiliate, or have a material interest in any business, corporation, partnership, limited liability company or other business entity which competes directly or indirectly with any Flagship/Parent Company Affiliate. For the purpose of defining and Employee acknowledges and agrees that enforcing this covenant, the competitors of Flagship/Parent Company Group Affiliates will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill measured as of termination of the Executive’s employment with Flagship, based on the then-existing market area of the Flagship/Parent Company GroupAffiliates.
(ii) Solicit or encourage, or attempt to solicit or encourage, any current customer or vendor of any Flagship/Parent Company Affiliate to do business with any person or entity in competition with any Flagship/Parent Company Affiliate or to reduce the amount of business which any such customer or vendor has customarily done or contemplates doing with any Flagship/Parent Company Affiliate, whether or not the relationship between any Flagship/Parent Company Affiliate and such customer or vendor was originally established in whole or in part through the Executive’s efforts.
(iii) Solicit or encourage, or attempt to solicit or encourage, any employee of any Flagship/Parent Company Affiliate, whether as an express incentive for officer, employee, consultant, agent or independent contractor, or any person who was so employed or engaged at any time during the Company to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed six (6) month period prior to the covenants set forth in date of the Executive’s solicitation, to leave his or her employment with such Flagship/Parent Company Affiliate, to cease providing services to Flagship/Parent Company Affiliates, or to accept employment with any other person or entity; provided however, that general solicitations not specifically targeted to employees of Flagship/Parent Company Affiliates shall not constitute a breach of this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the 7(a)(iii).
(iv) Make any false or defamatory statement about any Flagship/Parent Company Group’s Confidential Information, goodwill and legitimate business interestsAffiliate.
(b) During the Prohibited Period, Employee shall not, without the prior written approval of the Board, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in or participate within the Market Area in competition with any member of the Company Group in any aspect of the Business, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the The covenants set forth in Section 9 and in this Section 10, and because 7 shall apply during the Term of the immediate Executive’s employment with Flagship and irreparable damage that would be caused to for two (2) years after the members expiration or termination of the Company Group Term for which they would have no other adequate remedyany reason (including, for the Company and each other member avoidance of doubt, any early termination of the Company Group shall be entitled Term pursuant to enforce Section 4)) (the foregoing covenants“Restricted Period”). However, in the event of a breach or threatened by the Executive of any of the covenants in this Section 7, the term of the Restricted Period with respect to such covenant will be extended by the period of the duration of such breach.
(c) The Executive acknowledges and agrees that his compliance with Sections 5, 6 and 7 of this Agreement is an integral part of the consideration to be received by injunctions Flagship and restraining orders from any court is necessary to protect the equity value, business and goodwill and other proprietary interests of competent jurisdictionthe Flagship/Parent Company Affiliates and the relevant public policy and legal aspects of such provisions have been discussed with him and that every effort has been made to limit the restrictions placed upon Executive to those that are reasonable and necessary to protect the legitimate interests of the Flagship/Parent Company Affiliates. The Executive acknowledges that, without the necessity of showing any actual damages or that money damages would not afford an adequate remedybased upon his education, experience, and without training, Sections 5, 6 and 7 of this Agreement will not prevent the necessity of posting any bond or other security. The aforementioned equitable relief shall not be Executive from earning a livelihood and supporting the Company’s or any other member of Executive and his family during the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equityrelevant time period.
(d) If any of the restrictions set forth in Section 5, 6 or 7 of this Agreement is found by any court of competent jurisdiction to be illegal, invalid or unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, or is otherwise illegal, invalid or unenforceable for any reason, such court is hereby expressly authorized to modify this Agreement or to interpret this Agreement to extend only over the maximum period of time, range of activities, or geographic areas as to which it may be legal, valid and enforceable and, if this Agreement cannot be so modified or interpreted, such illegal, invalid or unenforceable provision shall be deemed excised from this Agreement. The covenants in this Section 10illegality, and each provision and portion hereof, are severable and separate, and the invalidity or unenforceability of any specific covenant (or portion thereof) provision of this Agreement shall not affect the provisions legality, validity or enforceability of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court provision of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformedAgreement.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee access As additional consideration to Confidential Information Flagship for use only entering this Agreement, the Executive covenants that during the Employment PeriodRestricted Period (as defined below), he shall not:
(i) Compete against any Flagship/Parent Company Affiliate, either directly or indirectly, by taking employment, gratuitously assisting or serving as an independent contractor, consultant, partner, director or officer with a competitor of any Flagship/Parent Company Affiliate, or starting his own business that would compete directly or indirectly with any Flagship/Parent Company Affiliate, or have a material interest in any business, corporation, partnership, limited liability company or other business entity which competes directly or indirectly with any Flagship/Parent Company Affiliate. For the purpose of defining and Employee acknowledges and agrees that enforcing this covenant, the competitors of Flagship/Parent Company Group Affiliates will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill measured as of termination of the Executive’s employment with Flagship, based on the then-existing market area of the Flagship/Parent Company GroupAffiliates.
(ii) Solicit or encourage, or attempt to solicit or encourage, any current customer or vendor of any Flagship/Parent Company Affiliate to do business with any person or entity in competition with any Flagship/Parent Company Affiliate or to reduce the amount of business which any such customer or vendor has customarily done or contemplates doing with any Flagship/Parent Company Affiliate, whether or not the relationship between any Flagship/Parent Company Affiliate and such customer or vendor was originally established in whole or in part through the Executive’s efforts.
(iii) Solicit or encourage, or attempt to solicit or encourage, any employee of any Flagship/Parent Company Affiliate, whether as an express incentive for officer, employee, consultant, agent or independent contractor, or any person who was so employed or engaged at any time during the Company to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed six (6) month period prior to the covenants set forth in date of the Executive’s solicitation, to leave his or her employment with such Flagship/Parent Company Affiliate, to cease providing services to Flagship/Parent Company Affiliates, or to accept employment with any other person or entity; provided however, that general solicitations not specifically targeted to employees of Flagship/Parent Company Affiliates shall not constitute a breach of this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the 7(a)(iii).
(iv) Make any false or defamatory statement about any Flagship/Parent Company Group’s Confidential Information, goodwill and legitimate business interestsAffiliate.
(b) During the Prohibited Period, Employee shall not, without the prior written approval of the Board, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in or participate within the Market Area in competition with any member of the Company Group in any aspect of the Business, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the The covenants set forth in Section 9 and in this Section 10, and because 7 shall apply during the Term of the immediate Executive’s employment with Flagship and irreparable damage that would be caused to for two (2) years after the members expiration or termination of the Company Group Term for which they would have no other adequate remedyany reason (including, for the Company and each other member avoidance of doubt, any early termination of the Company Group shall be entitled Term pursuant to enforce Section 4)) (the foregoing covenants”Restricted Period”). However, in the event of a breach or threatened by the Executive of any of the covenants in this Section 7, the term of the Restricted Period with respect to such covenant will be extended by the period of the duration of such breach.
(c) The Executive acknowledges and agrees that his compliance with Sections 5, 6 and 7 of this Agreement is an integral part of the consideration to be received by injunctions Flagship and restraining orders from any court is necessary to protect the equity value, business and goodwill and other proprietary interests of competent jurisdictionthe Flagship/Parent Company Affiliates and the relevant public policy and legal aspects of such provisions have been discussed with him and that every effort has been made to limit the restrictions placed upon Executive to those that are reasonable and necessary to protect the legitimate interests of the Flagship/Parent Company Affiliates. The Executive acknowledges that, without the necessity of showing any actual damages or that money damages would not afford an adequate remedybased upon his education, experience, and without training, Sections 5, 6 and 7 of this Agreement will not prevent the necessity of posting any bond or other security. The aforementioned equitable relief shall not be Executive from earning a livelihood and supporting the Company’s or any other member of Executive and his family during the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equityrelevant time period.
(d) If any of the restrictions set forth in Section 5, 6 or 7 of this Agreement is found by any court of competent jurisdiction to be illegal, invalid or unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, or is otherwise illegal, invalid or unenforceable for any reason, such court is hereby expressly authorized to modify this Agreement or to interpret this Agreement to extend only over the maximum period of time, range of activities, or geographic areas as to which it may be legal, valid and enforceable and, if this Agreement cannot be so modified or interpreted, such illegal, invalid or unenforceable provision shall be deemed excised from this Agreement. The covenants in this Section 10illegality, and each provision and portion hereof, are severable and separate, and the invalidity or unenforceability of any specific covenant (or portion thereof) provision of this Agreement shall not affect the provisions legality, validity or enforceability of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court provision of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformedAgreement.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee access to Confidential Information for use only during the Employment Period, and Employee acknowledges and agrees that the members of the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill of the members of the Company Group, and in consideration of the Company providing Employee with access to Confidential Information and as an express incentive for the Company to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interestsinterests of each member of the Company Group.
(b) During the Prohibited Period, Employee shall not, without the prior written approval of the Boardnot (and shall not take preparatory steps to), directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in, participate in or prepare to engage in or participate in the Business within the Market Area in competition with any member of the Company Group in any aspect of the BusinessArea, including by directly or indirectly: (A) owning, investing in, managing, controlling, participating in, consulting with, contributing to, lending one’s name to, providing assistance to, operating, or being an officer or director of, any business that competes with any member of the Company Group person or entity engaged in or preparing to engage in the Market AreaBusiness, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, or rendering services for, any person or entity engaged in, or planning preparing to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group or in any manner that requires Employee to learn of or use nonpublic, confidential, proprietary or trade secret information that is similar to the type of Confidential Information of which Employee learned or used at any member of the Company Group or in any manner that requires Employee to have client contacts or develop client relationships similar to the client contacts or the development of client relationships in which Employee engaged at any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group which or with whom Employee had contact, was involved as part of Employee’s job responsibilities (including oversight responsibility) with any member of the Company Group and/or about whom Employee learned Confidential Information to cease or lessen such customer’s or supplier’s business with any member of the Company Group; orGroup or otherwise adversely interference with the relationship between any member of the Company Group and such customer or supplier;
(iv) hire or engage any employee or contractor of any member of the Company Group with whom Employee had contact or solicit, canvass, approach, encourage, entice or induce any such employee or contractor of any member of the Company Group to terminate or reduce his, her or its employment or engagement with any member of the Company Group; or
(v) attempt to do any of the foregoing.
(c) Because of the difficulty of measuring economic losses to the members of the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformedreformed to make the restrictive covenants contained herein enforceable to maximum extent permitted by applicable law.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee access to Confidential Information for use only during Each of the Employment Period, and Employee Seller Parties acknowledges and agrees that the Company Group will be entrusting Employeegoodwill and Trade Secrets of the Business are material parts of the value of the Purchased Assets, and that it is a material inducement for the Buyer’s purchase of such Purchased Assets and assumption of the Assumed Liabilities under this Agreement that each of the Seller Parties agrees to certain covenants restricting certain competition and solicitation, in Employee’s unique and special capacity, with developing order to more fully vest in the goodwill Buyer the benefits of ownership of the Company Group, and as an express incentive for the Company to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition Purchased Assets and to protect the Company Group’s Confidential Information, goodwill and legitimate business interestsTrade Secrets of the Business being acquired by the Buyer pursuant to this Agreement.
(b) During the Prohibited Restricted Period, Employee shall notexcept as otherwise pre-approved in writing by the Buyer, without the prior written approval each Seller Party severally covenants that neither such Seller Party nor any Seller Related Party of the Boardsuch Seller Party, shall, directly or indirectly, in any capacity, for Employee or on behalf of or in conjunction with any other person or entity the benefit of any nature:
Person (iother than the Buyer or any Affiliate of the Buyer), (x) establish or engage in or participate within the Market Area Restricted Business anywhere in competition with any member of the Company Group in any aspect of the BusinessRestricted Territory, including by directly or indirectly: way of the purchase (A) owningwhether by way of stock purchase, managingasset purchase, operatingmerger, consolidation, exclusive license, or being an officer otherwise) of a Person (or director the business or assets of a Person) engaged in the Restricted Business anywhere in the Restricted Territory, (y) own any interest in, manage, operate, join, control, render financial assistance to, consult with, receive any economic benefit from, participate in, render services or advice to, extend credit to, guarantee, or otherwise participate in any of the foregoing in respect of, any business Person that competes with any member of the Company Group engages in the Market AreaRestricted Business anywhere in the Restricted Territory, or (Bz) joining, becoming an employee or consultant of, or otherwise being affiliated with, knowingly attempt to do any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to foregoing. For purposes of this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meaningsAgreement:
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The During the period in which you are employed by the Company shall provide Employee access to Confidential Information for use only during the Employment Period, and Employee acknowledges and agrees that and/or the Company Group will be entrusting Employee, in Employee’s unique and special capacity, for a period of one (1) year following the termination of your employment with developing the goodwill of the Company Group, and as an express incentive for and/or the Company to enter into this Agreement and employ Employee hereunderGroup for any reason or for no reason, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, you will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.
(b) During the Prohibited Period, Employee shall not, without the prior written approval consent of the BoardCompany and/or the Company Group, as applicable:
(i) Subject only to the terms of your Employment Agreement with the Company of even date herewith, for yourself or on behalf of any other person or entity, directly or indirectly, for Employee either as principal, partner, stockholder, officer, director, member, employee, consultant, agent, representative or in any other capacity, own, manage, operate, control or consult with or for, or be employed by, or otherwise associate in any manner with, engage in, or have an ownership or other financial interest in, any Competitive Business to provide the same type of services you provided to the Company or the Company Group (each, a “Restricted Activity”) anywhere in the United States where the Company or the Company Group’s business has reached at any time during your employment with the Company or the Company Group (the “Restricted Territory”), except that nothing contained herein will preclude you from purchasing or owning securities of any such business if such securities are publicly traded, and provided that your holdings do not exceed two percent (2%) of the issued and outstanding securities of any class of securities of such business; or
(ii) Either individually or on behalf of or in conjunction with through any third party, directly or indirectly, solicit, divert or appropriate or attempt to solicit, divert or appropriate any customer or other business partner of the Company or the Company Group (or any person or entity which was a customer or business partner, or a prospective customer or business partner with respect to which the Company and/or the Company Group has developed or made a sales presentation), with whom you had material contact during the period in which you were employed with the Company and/or the Company Group, for the purpose of any nature:
(i) engage in competing with the Company or participate within the Market Area in competition Company Group or reducing the Company’s or the Company Group’s relationship with any member customers or other business partners of the Company Group in or the Company Group; or
(iii) Either individually or on behalf of or through any aspect of the Businessthird party, including by directly or indirectly: (A) owning, managingemploy, operatinghire, cause to be employed or engaged, or being an officer solicit the employment or director of, the engagement as a consultant of any business that competes with any member employee of or consultant to the Company or the Company Group in while any such person is employed by or providing consulting services to the Market Area, Company or the Company Group or within six (B6) joining, becoming months after any such person ceases to be an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) solicitEither individually or on behalf of or through any third party, canvassdirectly or indirectly, approachinterfere with or attempt to interfere with, encourage, entice or induce any employee or contractor of any member of the relations between the Company and/or the Company Group and any vendor or supplier to terminate his, her the Company or its employment or engagement with any member of the Company Group.; or
(cv) Because During the course of your employment with the difficulty of measuring economic losses to Company and/or the Company Group as a result of a breach and at all times thereafter (notwithstanding the one year period noted above), you will not make any statement that is professionally or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of personally disparaging or defamatory about the Company Group for which they would have no other adequate remedy, the Company and each other member Group, any of the Company Group shall be entitled to enforce the foregoing covenantsits officers, in the event of a breach directors, shareholders or threatened breachemployees including, by injunctions and restraining orders from but not limited to, any court of competent jurisdictionstatement that disparages any person, without the necessity of showing any actual damages or that money damages would not afford an adequate remedyproduct, and without the necessity of posting any bond service, financing, financial condition, capability or other security. The aforementioned equitable relief shall not be aspect of the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to business or any of its officers, directors, shareholders or employees. You further agree that during the course of your employment with the Company and each other member and/or the Company Group you will not engage in any conduct that is intended to or has the result of inflicting harm upon the professional or personal reputation of the Company or the Company Group at law and equityor any of its officers, directors, shareholders or employees.
(dvi) The Company Group agrees and covenants in this that it shall take all corporate action within its power to cause its officers and directors to refrain from making any defamatory or disparaging remarks, comments, or statements concerning you during the term of your employment with the Company and/or the Company Group and at all times thereafter.
(vii) This Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof1(b) shall not affect the provisions of any other covenant (or portion thereof). Moreoverdoes not, in any way, restrict or impede the event parties from exercising protected rights to the extent that such rights cannot be waived by agreement or from complying with any arbitrator applicable law or regulation or a valid order of a court of competent jurisdiction shall determine that the scopeor an authorized government agency, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties provided that such restrictions be enforced to compliance does not exceed that required by the fullest extent which such arbitrator law, regulation, or court deems reasonable, and this Agreement shall thereby be reformedorder.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee access to Confidential Information for use only during During the Employment Periodperiod beginning on the Closing Date and ending on the fifth anniversary of the Closing Date, and Employee acknowledges and each Seller agrees that such Seller shall not, nor shall it permit its Affiliates to, either directly or indirectly (individually, or through or on behalf of another Person):
(i) establish, engage, own, manage, operate or control, or participate in the Company Group will establishment, ownership, management, operation or control of, or be entrusting Employeea director, in Employee’s unique and special capacityofficer, manager, employee, salesman, agent or representative of, or be a consultant to, any Person that competes with developing the goodwill businesses of the Group Companies as currently conducted in the Restricted Territory; provided, however, that such Person shall not be prohibited from owning up to 3% of the outstanding equity securities of a company that is publicly traded on a national securities exchange or in the over the counter market so long as such Person has no active participation in connection with the business of such company;
(ii) hire, solicit, encourage or induce or attempt to induce any employee of a Group Company Groupto leave the employment of such Group Company, and as an express incentive for the Company or to become employed by or to enter into this Agreement and employ Employee hereundera business relationship with any other Person; provided, Employee has voluntarily agreed to however, that a general solicitation not specifically targeted at the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do employees of a Group Company shall not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts be a violation of this Agreement intended and necessary clause (ii); or
(iii) except as required in the normal course of duties for its business, request, knowingly induce or knowingly attempt to prevent unfair competition and limit or influence any customer, employee, supplier or other business entity to protect limit or curtail in any material respect or cancel or terminate any business it transacts with, or products or services it provides to or receives from the Company Group’s Confidential Information, goodwill and legitimate business interestsGroup Companies.
(b) During the Prohibited Period, Employee Each Seller agrees that such Seller shall not, without nor shall its Affiliates, at any time, intentionally disparage in any material respect Parent, Buyer, the prior written approval Group Companies, any Affiliate of the Boardforegoing, directly any of its or indirectlytheir respective businesses, for Employee members or on behalf of Representatives, or in conjunction with any other person or entity the reputation of any nature:
of the foregoing Persons. Buyer shall not, nor shall its Affiliates, at any time, intentionally disparage in any material respect any Seller, any of its Affiliates or any of its or their respective businesses, managers, equity holders or Representatives, or the reputation of any of the foregoing Persons. This Section 7.2(b) shall not apply to (i) engage in testimony obtained through subpoena or participate within the Market Area in competition with any member of the Company Group in any aspect of the Business, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, information provided pursuant to an investigation by any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company GroupGovernmental Authority.
(c) Because If, at the time of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach enforcement of the covenants set forth in Section 9 and contained in this Section 107.2 (the “Restrictive Covenants”), a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under the circumstances then existing, Buyer and because each Seller agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by applicable Law. Each Party has consulted with legal counsel regarding the Restrictive Covenants and based on such consultation has determined and hereby acknowledges that the Restrictive Covenants are reasonable in terms of duration, scope and areas restrictions and are necessary to protect the goodwill of the immediate Group Companies and irreparable damage their businesses and the substantial investment in such businesses and the Group Companies made by Buyer. Each Party further agrees that would be caused it will not challenge the reasonableness of the duration, scope and area restrictions in any Action with respect to the members Restrictive Covenants, regardless of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equitywho initiates such Action.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide For the reasons and consideration specified in Section 8, Employee access to Confidential Information for use only hereby covenants and agrees that, during the Employment Period, and Employee acknowledges and agrees that the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill Term of the Company Group, and as an express incentive for the Company to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.
(b) During the Prohibited PeriodNon-Competition, Employee shall not, without the prior written approval of the Board, directly or indirectly, for Employee individually or on behalf of as an officer, director, manager, employee, stockholder, consultant, contractor, partner, member, joint venturer, agent, equity owner or in conjunction with any other person or entity of any naturecapacity whatsoever:
(i) engage in or participate within the Market Area in competition with any member of the Company Group in any aspect of the Businessown, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business manage, operate, join, control, be employed by, provide Competing Services to, or participate in the Market Area ownership, management, operation or control of or provision of Competing Services to, a Competing Business operating in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company GroupGeographic Area;
(ii) appropriate any Business Opportunity ofrecruit, hire, assist in hiring, attempt to hire, or relating tocontact or solicit with respect to hiring any Person who, at any member time during the 12 month period ending on the Date of Termination, was an employee of the Company; provided, that Employee may hire any Person that served as an administrative or clerical employee at the time Employee’s employment with the Company Group located in the Market Areaterminates;
(iii) solicit, canvass, approach, encourage, entice induce or attempt to induce any customer or supplier of any member employee of the Company Group to cease terminate, or lessen such customer’s or supplier’s business with in any member of way interfere with, the relationship between the Company Groupand any employee thereof; or
(iv) solicit, canvass, approach, encourage, entice induce or attempt to induce any employee customer, client, patient, supplier, service provider, or contractor of any member other business relation of the Company Group in the Geographic Area to terminate hiscease doing business with the Company, her or its employment or engagement in any way interfere with the relationship between the Company and any member such Person. Notwithstanding the foregoing, the Company agrees that Employee may own less than one percent of the outstanding voting securities of any publicly traded company that is a Competing Business so long as Employee does not otherwise participate in such competing business in any way prohibited by this Section 10.
(b) Employee shall not make any negative or disparaging comments regarding the Company, its Subsidiaries or Affiliates or any of their respective officers, directors, shareholders, partners, members, managers, agents or employees (collectively, the “Representatives”), including regarding the performance of the Company, its Subsidiaries or Affiliates, or otherwise take any action that could reasonably be expected to adversely affect the Company, its Subsidiaries or Affiliates or the personal or professional reputation of any of their respective Representatives. Information required to be disclosed by Employee pursuant to any applicable law, court order, subpoena, process or governmental decree shall not constitute a violation or breach of this Section 10(b); provided, that Employee delivers written notice of such required disclosure to the Company Grouppromptly before making such disclosure if such notice is not prohibited by applicable law, court order, subpoena, process or governmental decree.
(c) Because Employee acknowledges that the geographic boundaries, scope of prohibited activities, and time duration of the difficulty preceding paragraphs in this Section 10 (including the defined terms for “Competing Business,” “Geographic Area,” and “Term of measuring economic losses Non-Competition” set forth in Section 1) are reasonable in nature and are no broader than are necessary to maintain the goodwill of the Company Group and the confidentiality of its Confidential Information and to protect the goodwill and other legitimate business interests of the Company, and also that the enforcement of such covenants would not cause Employee any undue hardship or unreasonably interfere with Employee’s ability to earn a livelihood. If Employee violates the covenants and restrictions in this Section 10 and the Company brings legal action for injunctive or other equitable relief, Employee agrees that the Company shall not be deprived of the benefit of the full period of the restrictive covenant, as a result of a breach or threatened breach of the covenants set forth time involved in obtaining such relief. Accordingly, Employee agrees that the provisions in Section 9 and in this 10(a) shall have a duration determined pursuant to Section 1010(a), and because of computed from the immediate and irreparable damage that would be caused to date the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach legal or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equityis granted.
(d) The covenants If any court in any jurisdiction determines that any portion of this Section 1010 (including the defined terms for “Competing Business,” “Geographic Area,” and “Term of Non-Competition” set forth in Section 1) is invalid or unenforceable within such jurisdiction under circumstances then existing, the remainder of this Section 10 (including the defined terms for “Competing Business,” “Geographic Area,” and each provision and portion hereof, are severable and separate, and the unenforceability “Term of any specific covenant (or portion thereofNon-Competition” set forth in Section 1) shall not affect thereby be affected and shall be given full effect without regard to the invalid or unenforceable provisions. If any court in any jurisdiction construes any of the provisions of any other covenant this Section 10 (or portion thereof). Moreover, in including the event any arbitrator or court defined terms for “Competing Business,” “Geographic Area,” and “Term of competent jurisdiction shall determine that the scope, time or territorial restrictions Non-Competition” set forth are unreasonablein Section 1) to be invalid or unenforceable within such jurisdiction under circumstances then existing, then it is the intention because of the parties that duration, scope or geographical area of such provision, such court shall be required to substitute the maximum duration, scope or geographical area reasonable under such circumstances within such jurisdiction for the stated period, scope or area with respect to such jurisdiction and such court shall be allowed to revise the restrictions be enforced contained herein to cover the fullest extent which such arbitrator or court deems reasonablemaximum duration, scope and area permitted by law, and this Agreement shall thereby be reformedto enforce such provision as so revised.
(e) The following As used in this Section 10 (and the defined terms for “Competing Business,” “Geographic Area,” and “Term of Non-Competition” set forth in Section 1), “Company” shall have include the following meanings:Company and any of its Subsidiaries.
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee access to Confidential Information for use only during During the Employment Restricted Period, Seller shall not, and Employee acknowledges and agrees shall not permit any of its Subsidiaries to, directly or indirectly: (i) engage in, or assist others in engaging (whether through employment, consultation, advisory services, representation on a board of directors or other similar governing body or by any financial or other investment) in the Business in the United States; (ii) have an interest in any Person that engages directly or indirectly in the Company Group will be entrusting Employee, Business in Employee’s unique and special the United States in any capacity, with developing the goodwill including as a partner, stockholder, member, employee, principal, agent, trustee or consultant; or (iii) knowingly cause, induce or encourage any client, sales partner, dealer, sales agent, customer, supplier partners or other supplier, licensee, licensor or distributor of the Company GroupBusiness (including any existing client, customer, supplier, licensee, licensor or distributor of Seller and any Person that becomes a client, sales partner, dealer, sales agent, customer, supplier partners or other supplier, licensee, licensor or distributor of the Business after the Closing), or any other Person who has a material business relationship with the Business, to terminate or modify any such relationship. Notwithstanding the foregoing, Seller may own, directly or indirectly, solely as an express incentive for the Company to enter into this Agreement investment, securities of any Person traded on any national securities exchange if Seller is not a controlling Person of, or a member of a group which controls, such Person and employ Employee hereunderdoes not, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth hereindirectly or indirectly, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts own five percent (5%) or more of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interestsany class of securities of such Person.
(b) During the Prohibited Restricted Period, Employee Seller shall not, without the prior written approval and shall not permit any of the Boardits Subsidiaries to, directly or indirectly, for Employee solicit (except pursuant to a general solicitation which is not directed specifically to any Hired Employee) or on behalf of or in conjunction with hire any other person or entity of any nature:
(i) engage in or participate within the Market Area in competition with any member of the Company Group in any aspect of the Business, including by directly or indirectly: (A) owning, managing, operatingHired Employee, or being an officer encourage any Hired Employee to leave such employment or director ofhire any Hired Employee who has left such employment; provided, however, that nothing in this Section 6.5(b) shall prevent Seller or any business that competes with any member Subsidiary of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) solicit, canvass, approach, encourage, entice or induce Seller from hiring any employee or contractor of any member of the Company Group to terminate his, her or its whose employment or engagement with any member of the Company Grouphas been terminated by Buyer.
(c) Because During the Restricted Period, Seller shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, solicit or knowingly entice, or attempt to solicit or entice, any clients, sales partners, dealers, sales agents, customers, supplier partners or other suppliers, licensees, licensors or distributors of the difficulty Business, for purposes of measuring economic losses diverting their business or services from the Business.
(d) Seller agrees that it will not make or publish, verbally or in writing, any statements concerning the Business, Parent or Buyer, which statements are or reasonably may be construed as being injurious or inimical to the Company Group as a result best interests of the Business, Parent or Buyer, including statements alleging that the Business, Parent or Buyer have acted improperly, illegally or unethically or have engaged in business practices which are improper, illegal or unethical; provided, however, that such restrictions shall not apply [*****] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. to any confidential communications with any Governmental Entity (including communications made in the course of any governmental investigation) or disclosures made in any Proceedings between Buyer or any of its Affiliates and Seller.
(e) If Seller breaches, or threatens to commit a breach or threatened breach of, any of the covenants set forth in Section 9 and in provisions of this Section 106.5, Buyer shall have the following rights and remedies not subject to any limitations under Article 8, each of which rights and remedies shall be independent of the others and severally enforceable, and because each of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, is in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedyaddition to, and without the necessity of posting not in lieu of, any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to Buyer under law or in equity:
(i) the Company right and each other member remedy to seek to have such provision specifically enforced by any court having jurisdiction, it being acknowledged and agreed that any such breach or threatened breach may cause irreparable injury to Buyer and that money damages may not provide an adequate remedy to Buyer; and
(ii) the right and remedy to recover from Seller all monetary damages suffered by Buyer as the result of the Company Group at law and equityany acts or omissions constituting a breach of this Section 6.5.
(df) The covenants Seller acknowledges that the restrictions contained in this Section 106.5 (i) are reasonable and necessary to protect the legitimate interests of Buyer and the goodwill, customer relationships, and Owned Intellectual Property purchased by Buyer and (ii) constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated hereby. In the event that any covenant contained in this Section 6.5 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 6.5 and each provision and portion hereof, hereof are severable and separate, distinct covenants and the provisions. The invalidity or unenforceability of any specific such covenant (or portion thereof) provision as written shall not affect invalidate or render unenforceable the remaining covenants or provisions of hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformedjurisdiction.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee access to Confidential Information for use only during During the Employment Period, and Employee acknowledges and agrees that the Company Group will be entrusting Employee, in period of Employee’s unique and special capacity, employment with developing the goodwill of the Company Group, and as an express incentive for the Company pursuant to enter into this Agreement and employ Employee hereunderfor a period of two (2) years thereafter, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, knowingly and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.
intentionally (bi) During the Prohibited Period, Employee shall not, without the prior written approval of the Boardengage, directly or indirectly, alone or as a partner, officer, director, employee, or consultant of any other business organization in any business activities that are substantially and directly competitive with the business activities then conducted by Company anywhere in the world; it being mutually understood and agreed that customers or suppliers of the Company who are not also primarily engaged in providing electronics design, engineering or manufacturing or precision manufacturing services and who purchase goods or services from, or supply goods or services to, the Company shall not be deemed to be engaging in business activities that are substantially and directly competitive with the business activities conducted by the Company (the “Designated 11 Industry”); (ii) divert to any competitor of Company in the Designated Industry any customer of Company; (iii) solicit or encourage any officer, employee, or consultant of Company to leave its employ for Employee employment by or with any competitor of Company in the Designated Industry or, on behalf of herself or any other Person, hire, employ or engage any such person; or (iv) engage at any time in conjunction with any form of conduct or make any statements, or direct any other person or entity of any nature:
(i) to engage in any conduct or participate within make any statements, that disparage, criticize or otherwise impair the Market Area in competition with any member reputation of the Company Group in any aspect of the BusinessCompany, including by directly its subsidiaries, their products and services, or indirectly: their past and present officers, directors, employees and consultants. The parties hereto acknowledge that (A) owning, managing, operating, or being an officer or director of, any business that competes with any member Employee’s non-competition obligations hereunder will not preclude Employee from (x) owning less than 5% of the Company Group common stock of any publicly traded corporation or other Person conducting business activities in the Market Area, Designated Industry or (y) serving as a director of a corporation or other Person engaged in the manufacturing or electronics industry whose business operations are not substantially and directly competitive with those of Company; and (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business restrictions set forth in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the preceding sentence shall not apply to any statements by Employee that are made truthfully in response to a subpoena or as otherwise required by applicable law or other compulsory legal process. Company Group agrees to terminate his, her or its employment or engagement with any member of the Company Group.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to direct the members of the Company Group for which they would have no other adequate remedyits Board and executive management team to not engage in any conduct or to make any statements, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or direct any other member person to engage in any conduct or to make any statements, that disparage, criticize or otherwise impairs the reputation of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equityEmployee.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee access to Confidential Information for use only during During the Employment Period, and Employee acknowledges and agrees that period of Employee’s employment with the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill of the Company Group, and as an express incentive for the Company pursuant to enter into this Agreement and employ for a period of two (2) years thereafter, the Employee hereunder, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, knowingly and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.
intentionally (bi) During the Prohibited Period, Employee shall not, without the prior written approval of the Boardengage, directly or indirectly, alone or as a partner, officer, director, employee, or consultant of any other business organization, in any business activities that are substantially and directly competitive with the business activities then conducted by the Company anywhere in the world (the “Designated Industry”); (ii) divert to any competitor of the Company in the Designated Industry any customer of the Company; (iii) solicit or encourage any officer, employee, or consultant of the Company to leave its employ for Employee employment by or with any competitor of the Company in the Designated Industry or, on behalf of herself or any other Person, hire, employ or engage any such person; or (iv) engage at any time in conjunction with any form of conduct or make any statements, or direct any other person or entity of any nature:
(i) to engage in any conduct or participate within make any statements, that disparage, criticize or otherwise impair the Market Area in competition with any member reputation of the Company Group in any aspect of the BusinessCompany, including by directly its subsidiaries, their products and services, or indirectly: their past and present officers, directors, employees and consultants. The parties hereto acknowledge that (A) owning, managing, operating, or being an officer or director of, any business that competes with any member the Employee’s non-competition obligations hereunder will not preclude the Employee from (x) owning less than 5% of the Company Group common stock of any publicly traded corporation or other Person conducting business activities in the Market Area, Designated Industry or (y) serving as a director of a corporation or other Person engaged in the manufacturing or electronics industry whose business operations are not substantially and directly competitive with those of the Company; and (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business restrictions set forth in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group preceding sentence shall not apply to terminate his, her any statements by the Employee that are made truthfully in response to a subpoena or its as otherwise required by applicable law or other compulsory legal process. Upon the termination of Employee’s employment or engagement with any member of the Company Group.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedyany reason, the Company agrees to direct the then-current members of its Board of Directors and each other member of the Company Group shall be entitled executive management team to enforce the foregoing covenantsnot engage in any conduct or to make any statements, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or direct any other member person to engage in any conduct or to make any statements, that disparage, criticize or otherwise impairs the reputation of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equityEmployee.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee Executive access to Confidential Information for use only during the Employment Period. Moreover, and Employee Executive acknowledges and agrees that the Company Group will be entrusting Employee, in Employee’s unique and special capacity, entrust Executive with developing and maintaining substantial relationships with prospective or existing customers, vendors, and clients of the Company and developing and maintaining the goodwill of the Company Group, Company. In consideration of the foregoing and as an express incentive for the Company to enter into this Agreement and employ Employee Executive hereunder, Employee has Executive voluntarily agreed agrees to the covenants set forth in this Section 109. Employee Executive agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, herein are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee Executive undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the legitimate business interests of the Company Group’s Confidential Information, goodwill and legitimate business interests.
(b) During the Prohibited Period, Employee Executive shall not, without the prior written approval of the Board, directly or indirectly, for Employee Executive or on behalf of or in conjunction with any other person or entity of any natureentity:
(i) engage in render managerial, employment, executive, or participate within consulting services of the Market Area in competition with any member type provided by Executive to or on behalf of the Company Group in any aspect of within the Business, including by directly or indirectly: two (A2) owning, managing, operating, or being an officer or director of, any business that competes with any member of years prior to the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, Termination Date to any person or entity engaged inthat engages in or owns, invests in any material respect, operates, manages or planning controls any venture or enterprise which substantially engages or proposes to substantially engage in, in the Business in the Market Area Area. Notwithstanding the foregoing, nothing in competition, or anticipated competition, with this Agreement shall be deemed to prohibit the passive ownership by Executive of not more than five percent (5%) of any member class of the Company Group in securities of any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar corporation having a class of securities registered pursuant to the duties or responsibilities that Employee had on behalf Securities Exchange Act of any member of the Company Group1934, as amended;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice entice, or induce any customer or supplier of any member of the Company Group which or with whom Executive had contact, was involved as part of Executive’s job responsibilities (including oversight responsibility) with the Company Group and/or about whom Executive learned Confidential Information to cease or lessen such customer’s or supplier’s business with any member of the Company Group; orGroup or otherwise adversely interfere with the relationship between the Company Group and such customer or supplier;
(iv) solicit, canvass, approach, encourage, entice entice, or induce any employee Executive or contractor of any member of the Company Group to terminate or reduce his, her her, or its employment or engagement with any member of the Company Group; or
(v) attempt to do any of the foregoing.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 8 and in this Section 109, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other securitybond. The aforementioned equitable relief shall not be the Company’s or any other member of limit the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(d) The covenants in this Section 109, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in In the event any arbitrator or a court of competent jurisdiction shall determine determines that the scope, time time, or territorial restrictions set forth are unreasonable, then it is the intention intent of the parties Parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformedreformed to make the covenants contained enforceable to the maximum extent permitted by applicable law.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide For the reasons and consideration specified in Section 8, Employee access to Confidential Information for use only hereby covenants and agrees that, during the Employment Period, and Employee acknowledges and agrees that the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill Term of the Company Group, and as an express incentive for the Company to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.
(b) During the Prohibited PeriodNon-Competition, Employee shall not, without the prior written approval of the Board, directly or indirectly, for Employee individually or on behalf of as an officer, director, manager, employee, stockholder, consultant, contractor, partner, member, joint venturer, agent, equity owner or in conjunction with any other person or entity of any naturecapacity whatsoever:
(i) engage in or participate within the Market Area in competition with any member of the Company Group in any aspect of the Businessown, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business manage, operate, join, control, be employed by, provide Competing Services to, or participate in the Market Area ownership, management, operation or control of or provision of Competing Services to, a Competing Business operating in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company GroupGeographic Area;
(ii) appropriate any Business Opportunity ofrecruit, hire, assist in hiring, attempt to hire, or relating tocontact or solicit with respect to hiring any Person who, at any member time during the 12 month period ending on the Date of Termination, was an employee of the Company; provided, that Employee may hire any Person that served as an administrative assistant or clerical employee at the time Employee’s employment with the Company Group located in the Market Areaterminates;
(iii) solicit, canvass, approach, encourage, entice induce or attempt to induce any customer or supplier of any member employee of the Company Group to cease terminate, or lessen such customer’s or supplier’s business with in any member of way interfere with, the relationship between the Company Groupand any employee thereof; or
(iv) solicit, canvass, approach, encourage, entice induce or attempt to induce any employee customer, client, patient, supplier, service provider, or contractor of any member other business relation of the Company Group in the Geographic Area to terminate hiscease doing business with the Company, her or its employment or engagement in any way interfere with the relationship between the Company and any member such Person. Notwithstanding the foregoing, the Company agrees that Employee may own less than one percent of the outstanding voting securities of any publicly traded company that is a Competing Business so long as Employee does not otherwise participate in such competing business in any way prohibited by this Section 10. This Section 10(a) shall not apply in the event Company Groupbreaches any of its obligations under Section 5 or 6.
(b) Employee shall not make any negative or disparaging comments regarding the Company, its Subsidiaries or Affiliates or any of their respective officers, directors, shareholders, partners, members, managers, agents or employees (collectively, the “Representatives”), including regarding the performance of the Company, its Subsidiaries or Affiliates, or otherwise take any action that could reasonably be expected to adversely affect the Company, its Subsidiaries or Affiliates or the personal or professional reputation of any of their respective Representatives. Information required to be disclosed by Employee pursuant to any applicable law, court order, subpoena, process or governmental decree shall not constitute a violation or breach of this Section 10(b); provided, that Employee delivers written notice of such required disclosure to the Company promptly before making such disclosure if such notice is not prohibited by applicable law, court order, subpoena, process or governmental decree.
(c) Because Employee acknowledges that the geographic boundaries, scope of prohibited activities, and time duration of the difficulty preceding paragraphs in this Section 10 (including the defined terms for “Competing Business,” “Geographic Area,” and “Term of measuring economic losses Non-Competition” set forth in Section 1) are reasonable in nature and are no broader than are necessary to maintain the goodwill of the Company Group and the confidentiality of its Confidential Information and to protect the goodwill and other legitimate business interests of the Company, and also that the enforcement of such covenants would not cause Employee any undue hardship or unreasonably interfere with Employee’s ability to earn a livelihood. If Employee violates the covenants and restrictions in this Section 10 and the Company brings legal action for injunctive or other equitable relief, Employee agrees that the Company shall not be deprived of the benefit of the full period of the restrictive covenant, as a result of a breach or threatened breach of the covenants set forth time involved in obtaining such relief. Accordingly, Employee agrees that the provisions in Section 9 and in this 10(a) shall have a duration determined pursuant to Section 1010(a), and because of computed from the immediate and irreparable damage that would be caused to date the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach legal or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equityis granted.
(d) The covenants If any court in any jurisdiction determines that any portion of this Section 1010 (including the defined terms for “Competing Business,” “Geographic Area,” and “Term of Non-Competition” set forth in Section 1) is invalid or unenforceable within such jurisdiction under circumstances then existing, the remainder of this Section 10 (including the defined terms for “Competing Business,” “Geographic Area,” and each provision and portion hereof, are severable and separate, and the unenforceability “Term of any specific covenant (or portion thereofNon-Competition” set forth in Section 1) shall not affect thereby be affected and shall be given full effect without regard to the invalid or unenforceable provisions. If any court in any jurisdiction construes any of the provisions of any other covenant this Section 10 (or portion thereof). Moreover, in including the event any arbitrator or court defined terms for “Competing Business,” “Geographic Area,” and “Term of competent jurisdiction shall determine that the scope, time or territorial restrictions Non-Competition” set forth are unreasonablein Section 1) to be invalid or unenforceable within such jurisdiction under circumstances then existing, then it is the intention because of the parties that duration, scope or geographical area of such provision, such court shall be required to substitute the maximum duration, scope or geographical area reasonable under such circumstances within such jurisdiction for the stated period, scope or area with respect to such jurisdiction and such court shall be allowed to revise the restrictions be enforced contained herein to cover the fullest extent which such arbitrator or court deems reasonablemaximum duration, scope and area permitted by law, and this Agreement shall thereby be reformedto enforce such provision as so revised.
(e) The following As used in this Section 10 (and the defined terms for “Competing Business,” “Geographic Area,” and “Term of Non-Competition” set forth in Section 1), “Company” shall have include the following meanings:Company and any of its Subsidiaries.
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee access to Confidential Information for use only agrees that, during the Employment Period, and Employee acknowledges and agrees that the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill term of the Company Group, and as an express incentive for the Company to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed to for a period following the covenants set forth in this Section 10. Employee agrees and acknowledges that termination date of two years if the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect Employee’s employment is terminated by the Company Groupor one of its Affiliates for Cause or by the Employee without Good Reason or one year if the Employee’s Confidential Informationemployment is terminated for any other reason, goodwill and legitimate business interests.
(b) During the Prohibited Period, Employee shall will not, without the prior written approval of the Board, directly or indirectly, for Employee in any capacity whatsoever, either on the Employee’s own behalf or on behalf of or in conjunction with any other person Person with whom the Employee may be employed or entity of any natureotherwise associated:
(i) engage in or participate within the Market Area in competition with any member of the Company Group in any aspect of the Businessinvest in, including by directly or indirectly: (A) owningown, managingmanage, operatingoperate, or being finance, control, acquire an officer or director ofinterest in, any business that competes with any member of the Company Group in the Market Areabe employed by, or (B) joiningrender services to, becoming act as an employee or consultant agent on behalf of, or otherwise being affiliated with, in any person or entity engaged way participate in, associate with or allow his skill, knowledge, experience or reputation to be used by (whether as a proprietor, partner, stockholder, member, director, officer, employee, joint venturer, investor, consultant, agent, sales representative, broker or other participant) any Person engaged in or planning to engage in, become engaged in the Business within the United States; provided, however, that the Employee may own passive investments in the Market Area in competition, or anticipated competition, with any member not more than 1% of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf outstanding securities of any member Person engaged in such Business (but without otherwise participating in such similar business) if such securities are registered under Section 12 of the Company GroupSecurities Exchange Act of 1934, as amended;
(ii) appropriate contact any Business Opportunity of, or relating to, any member customer of the Company Group located in or its Affiliates to solicit, divert or entice away the Market Areabusiness of such customer, or otherwise disrupt the relationship between such customer and the Company or its Affiliates;
(iii) solicit, canvassinduce, approachinfluence or attempt to influence any supplier, encouragelessor, entice lessee, licensor, partner, joint venturer, potential acquiree or induce any customer other person who has a business relationship with the Company or supplier its Affiliates, or who on the termination date is engaged in discussions or negotiations to enter into a business relationship with the Company or its Affiliates, to discontinue, reduce or limit the extent of such relationship with the Company or any member of its Affiliates;
(iv) make contact with any employee of the Company Group to cease or lessen its Affiliates for the purpose of soliciting such customeremployee for hire, whether as an employee, independent contractor, consultant or otherwise, or otherwise disrupting such employee’s or supplier’s business relationship with any member of the Company Groupor its Affiliates; or
(ivv) solicitmake any statement or disclose any information to any customers, canvasssuppliers, approachlenders, encouragelessors, entice or induce any employee or contractor of any member licensees, other employees of the Company Group to terminate his, her or its employment Affiliates or engagement others that is defamatory or derogatory with any member respect to the business, operations, management or other employees of the Company Groupor its Affiliates, or take any other action (excluding making truthful, non-defamatory statements in good faith that do not violate any other provision of this Agreement) that could reasonably be expected to injure the Company in its business relationships with any of the foregoing parties or result in any other detrimental effect on the Company or its Affiliates.
(cb) Because The Employee agrees that: (i) the covenants and agreements set forth in this Article IV are reasonable both in scope of geographical area and duration, (ii) the Company would not have entered into this Agreement but for such covenants of the difficulty of measuring economic losses to the Company Group Employee, (iii) such covenants have been made as a result of a breach arm-length bargaining in order to induce the Company to enter into this Agreement, and (iv) such covenants and agreements are reasonable and necessary for the protection of the Confidential Information, assets, goodwill and business of the Company. Employee further agrees that the phrase “any Person engaged in or threatened breach planning to become engaged in the Business within the United States,” as used in Section 4.2(a)(i) above, shall include AT&T Inc., Cincinnati Xxxx Inc., Comcast Corporation, Consolidated Communications Holdings Inc., Crown Castle International Corp., Dish Network Corp., EchoStar Corporation, Frontier Communications Corp., IDT Corp., Liberty Global plc, Mitel Networks Corp., Telephone & Data Systems Inc., TELUS Corp., Viacom, Inc., Viasat, Inc., Zayo Group Holdings, Inc., XO Holdings, Inc., Sprint Nextel Corporation, tw telecom inc., Verizon Communications Inc., Limelight Networks, Inc., Akamai Technologies Inc., Windstream Corporation, Reliance Communications Venture Limited, including in each case their affiliates, successors, and assigns. To the extent permitted by applicable law, the Employee covenants and agrees not to institute, maintain, prosecute or in any way aid in the institution, maintenance or prosecution of any lawsuit, action, claim, arbitration or other proceeding against the Company or any of its Affiliates with respect to the enforceability of the covenants set forth in Section 9 and contained in this Section 10, Article IV and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to Employee hereby irrevocably waives all other rights and remedies defenses otherwise available to the Company and each other member of the Company Group at law and equity.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced Employee with respect to the fullest extent which strict enforcement of such arbitrator or court deems reasonable, covenants and this Agreement shall thereby be reformedagreements by the Company.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee access to Confidential Information for use only during During the Employment Period, and Employee acknowledges and agrees that the Company Group will be entrusting Employee, in period of Employee’s unique and special capacity, employment with developing the goodwill of the Company Group, and as an express incentive for the Company pursuant to enter into this Agreement and employ Employee hereunderfor a period of two (2) years thereafter, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, knowingly and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.
intentionally (bi) During the Prohibited Period, Employee shall not, without the prior written approval of the Boardengage, directly or indirectly, alone or as a partner, officer, director, employee, or consultant of any other business organization in any business activities that are substantially and directly competitive with the business activities then conducted by Company anywhere in the world; it being mutually understood and agreed that customers or suppliers of Company who are not also primarily engaged in providing electronics design, engineering or manufacturing or precision manufacturing services and who purchase goods or services from, or supply goods or services to, Company shall not be deemed to be engaging in business activities that are substantially and directly competitive with the business activities conducted by Company (the “Designated Industry”); (ii) divert to any competitor of Company in the Designated Industry any customer of Company; (iii) solicit or encourage any officer, employee, or consultant of Company to leave its employ for Employee employment by or with any competitor of Company in the Designated Industry or, on behalf of herself or any other Person, hire, employ or engage any such person; or (iv) engage at any time in conjunction with any form of conduct or make any statements, or direct any other person or entity of any nature:
(i) to engage in any conduct or participate within make any statements, that disparage, criticize or otherwise impair the Market Area in competition with any member reputation of the Company Group in any aspect of the BusinessCompany, including by directly its subsidiaries, their products and services, or indirectly: their past and present officers, directors, employees and consultants. The parties hereto acknowledge that (A) owning, managing, operating, or being an officer or director of, any business that competes with any member Employee’s non-competition obligations hereunder will not preclude Employee from (x) owning less than 5% of the Company Group common stock of any publicly traded corporation or other Person conducting business activities in the Market Area, Designated Industry or (y) serving as a director of a corporation or other Person engaged in the manufacturing or electronics industry whose business operations are not substantially and directly competitive with those of Company; and (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business restrictions set forth in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the preceding sentence shall not apply to any statements by Employee that are made truthfully in response to a subpoena or as otherwise required by applicable law or other compulsory legal process. Company Group agrees to terminate his, her or its employment or engagement with any member of the Company Group.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to direct the members of the Company Group for which they would have no other adequate remedyits Board and executive management team to not engage in any conduct or to make any statements, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or direct any other member person to engage in any conduct or to make any statements, that disparage, criticize or otherwise impairs the reputation of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equityEmployee.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee access to Confidential Information for use only during the Employment Period, and Employee Executive acknowledges and agrees that recognizes the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing highly competitive nature of the goodwill businesses of the Company Group, and its Affiliates and accordingly agrees as an express incentive for follows:
(i) During Executive’s employment with the Company or its Affiliates and for a period of: (i) twenty-four (24) months following the date Executive ceases to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect be employed by the Company Groupor its Affiliates if Executive’s Confidential Informationtermination of employment arises from any event other than termination by the Company without Cause or termination by the Executive for Good Reason, goodwill and legitimate business interests.
or (bii) During twelve (12) months following the Prohibited date Executive ceases to be employed by the Company or its Affiliates if Executive’s termination of employment arises from either termination by the Company without Cause or termination by the Executive for Good Reason (the “Restricted Period”), Employee shall Executive will not, without the prior written approval of the Board, directly or indirectly, for Employee whether on Executive’s own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other person business organization, entity or entity enterprise whatsoever (“Person”), directly or indirectly solicit or assist in soliciting in competition with the Restricted Group in the Business, the business of any naturethen current or prospective client or customer with whom Executive (or his direct reports) had personal contact or dealings on behalf of the Company or its Affiliates during the two-year period preceding Executive’s termination of employment.
(ii) During the Restricted Period, Executive will not directly or indirectly in any state or the District of Columbia where the Company maintains an office with a minimum of twenty employees:
(iA) engage enter the employ of a Competitor, except where such employment does not relate in or participate within any manner to the Market Area Business;
(B) Without the prior written authorization of the Board, which consent may be withheld at the Board’s sole and absolute discretion, render any services to a Competitor; except where such services do not relate in competition any manner to the Business;
(C) acquire a financial interest in and otherwise become actively involved in the Business with any Person as, a general partner, shareholder, officer, director, principal, member, manager, agent, trustee or lender; or
(D) intentionally and adversely interfere with, or attempt to adversely interfere with, business relationships between the members of the Restricted Group and any of their clients, customers, suppliers, partners, members or investors.
(iii) Executive may, directly or indirectly own, solely as an investment, securities of any Person engaged in a Business (including, without limitation, a Competitor) if Executive (A) is not a Controlling Person of, or a member of the Company Group in any aspect of the Businessa group which Controls, including by such Person and (B) does not, directly or indirectly: , own 2% or more of any class of securities of such Person.
(iv) During Executive’s employment with the Company and during the Restricted Period, Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(A) owning, managing, operating, solicit or being an officer or director of, encourage any business that competes with any member employee of the Company Restricted Group in to leave the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member employment of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Restricted Group;
(iiB) appropriate without the prior written consent of the Board, hire any Business Opportunity ofexecutive-level employee who was employed by the Restricted Group as of the Executive’s Date of Termination or who left the employment of the Restricted Group coincident with, or relating towithin one year prior to or after, any member the Executive’s Date of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company GroupTermination; or
(C) encourage any material consultant of the Restricted Group to cease working with the Restricted Group. The prohibitions against soliciting, encouraging to leave employment of the Restricted Group and hiring described in Sections 1 (a) (iv) solicit, canvass, approach, encourage, entice or induce (A) and (B) of this Appendix B shall not apply to any employee or contractor of any family member of the Company Group to terminate his, her or its employment or engagement with any member of the Company GroupExecutive.
(cv) Because For purposes of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meaningsAppendix B:
Appears in 1 contract
Samples: Executive Employment Agreement (Bowman Consulting Group Ltd.)
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee access to Confidential Information for use only during the Employment Period, and Employee acknowledges and agrees that the Company Group will shall be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill of the Company Group, and in consideration thereof and in consideration of the Company providing Employee with access to Confidential Information and as an express incentive for the Company to enter into this Agreement and employ Employee hereunderEmployee, Employee has voluntarily agreed to the covenants set forth in this Section 109. Employee further agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope all respects and purpose in all respectsnot oppressive, do not interfere with public interests, will shall not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and substantial and legitimate business interests.
(b) During Employee agrees that, during the Prohibited Period, Employee shall not, without the prior written approval of the Board, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in or participate within the Market Area in competition with any member of the Company Group in any aspect of the Business, including by which prohibition shall prevent Employee from directly or indirectly: (A) indirectly owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an officer, director, employee or consultant of, or loaning money to, or selling or leasing equipment or real estate to or otherwise being affiliated with, with any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with the Company Group, including any customer or supplier who was a customer or supplier of any member of the Company GroupGroup during the eighteen (18) month period preceding the Termination Date; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group, including any employee or contractor who was an employee or contractor of any member of the Company Group during the eighteen (18) month period preceding the Termination Date.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 8 and in this Section 109, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity. In addition, Employee acknowledges that money damages would not be a sufficient remedy for any breach of this Section 9 by Employee, and the Company or its Affiliates shall be entitled to enforce the provisions of this Section 9 by terminating payments then owing to Employee under this Agreement.
(d) The covenants in this Section 109, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The For purposes of this Section 9, the following terms shall have the following meanings:
Appears in 1 contract
Samples: Employment Agreement (Daseke, Inc.)
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide For the reasons and consideration specified in Section 8, Employee access to Confidential Information for use only hereby covenants and agrees that, during the Employment Period, and Employee acknowledges and agrees that the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill Term of the Company Group, and as an express incentive for the Company to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.
(b) During the Prohibited PeriodNon-Competition, Employee shall not, without the prior written approval of the Board, directly or indirectly, for Employee individually or on behalf of as an officer, director, manager, employee, stockholder, consultant, contractor, partner, member, joint venturer, agent, equity owner or in conjunction with any other person or entity of any naturecapacity whatsoever:
(i) engage in or participate within the Market Area in competition with any member of the Company Group in any aspect of the Businessown, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, manage, operate, join, control, be employed by, provide Competing Services to, or participate in the ownership, management, operation or control of or provision of Competing Services to, a Competing Business operating in the Geographic Area; provided, however, Employee may be employed by an organization, such as a hospital, nursing home or other similar type of healthcare provider, that also operates a Competing Business in the Market Area in competitionGeographic Area, provided that (1) Employee is not employed by and does not provide services directly to the division, subsidiary or anticipated competition, with any member affiliate of such organization that operates a Competing Business and (2) the Competing Business makes up less than five percent (5%) of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf net revenues of any member of the Company Groupsuch organization;
(ii) appropriate any Business Opportunity ofrecruit, hire, assist in hiring, attempt to hire, or relating tocontact or solicit with respect to hiring any Person who, at any member time during the 12 month period ending on the Date of Termination, was an employee of the Company; provided, that Employee may hire any Person that served as an administrative assistant assigned to Employee at the time Employee’s employment with the Company Group located in the Market Areaterminates;
(iii) solicit, canvass, approach, encourage, entice induce or attempt to induce any customer or supplier of any member employee of the Company Group to cease terminate, or lessen such customer’s or supplier’s business with in any member of way interfere with, the relationship between the Company Groupand any employee thereof; or
(iv) solicit, canvass, approach, encourage, entice induce or attempt to induce any employee customer, client, patient, supplier, service provider, or contractor of any member other business relation of the Company Group in the Geographic Area to terminate hiscease doing business with the Company, her or its employment or engagement in any way interfere with the relationship between the Company and any member such Person. Notwithstanding the foregoing, the Company agrees that Employee may own less than one percent of the outstanding voting securities of any publicly traded company that is a Competing Business so long as Employee does not otherwise participate in such competing business in any way prohibited by this Section 10. This Section 10(a) shall not apply in the event Company Groupbreaches any of its obligations under Section 5 or 6.
(b) Employee shall not make any negative or disparaging comments regarding the Company, its Subsidiaries or Affiliates or any of their respective officers, directors, shareholders, partners, members, managers, agents or employees (collectively, the “Representatives”), including regarding the performance of the Company, its Subsidiaries or Affiliates, or otherwise take any action that could reasonably be expected to adversely affect the Company, its Subsidiaries or Affiliates or the personal or professional reputation of any of their respective Representatives. Information required to be disclosed by Employee pursuant to any applicable law, court order, subpoena, process or governmental decree shall not constitute a violation or breach of this Section 10(b); provided, that Employee delivers written notice of such required disclosure to the Company promptly before making such disclosure if such notice is not prohibited by applicable law, court order, subpoena, process or governmental decree.
(c) Because Employee acknowledges that the geographic boundaries, scope of prohibited activities, and time duration of the difficulty preceding paragraphs in this Section 10 (including the defined terms for “Competing Business,” “Geographic Area,” and “Term of measuring economic losses Non-Competition” set forth in Section 1) are reasonable in nature and are no broader than are necessary to maintain the goodwill of the Company Group and the confidentiality of its Confidential Information and to protect the goodwill and other legitimate business interests of the Company, and also that the enforcement of such covenants would not cause Employee any undue hardship or unreasonably interfere with Employee’s ability to earn a livelihood. If Employee violates the covenants and restrictions in this Section 10 and the Company brings legal action for injunctive or other equitable relief, Employee agrees that the Company shall not be deprived of the benefit of the full period of the restrictive covenant, as a result of a breach or threatened breach of the covenants set forth time involved in obtaining such relief. Accordingly, Employee agrees that the provisions in Section 9 and in this 10(a) shall have a duration determined pursuant to Section 1010(a), and because of computed from the immediate and irreparable damage that would be caused to date the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach legal or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equityis granted.
(d) The covenants If any court in any jurisdiction determines that any portion of this Section 1010 (including the defined terms for “Competing Business,” “Geographic Area,” and “Term of Non-Competition” set forth in Section 1) is invalid or unenforceable within such jurisdiction under circumstances then existing, the remainder of this Section 10 (including the defined terms for “Competing Business,” “Geographic Area,” and each provision and portion hereof, are severable and separate, and the unenforceability “Term of any specific covenant (or portion thereofNon-Competition” set forth in Section 1) shall not affect thereby be affected and shall be given full effect without regard to the invalid or unenforceable provisions. If any court in any jurisdiction construes any of the provisions of any other covenant this Section 10 (or portion thereof). Moreover, in including the event any arbitrator or court defined terms for “Competing Business,” “Geographic Area,” and “Term of competent jurisdiction shall determine that the scope, time or territorial restrictions Non-Competition” set forth are unreasonablein Section 1) to be invalid or unenforceable within such jurisdiction under circumstances then existing, then it is the intention because of the parties that duration, scope or geographical area of such provision, such court shall be required to substitute the maximum duration, scope or geographical area reasonable under such circumstances within such jurisdiction for the stated period, scope or area with respect to such jurisdiction and such court shall be allowed to revise the restrictions be enforced contained herein to cover the fullest extent which such arbitrator or court deems reasonablemaximum duration, scope and area permitted by law, and this Agreement shall thereby be reformedto enforce such provision as so revised.
(e) The following As used in this Section 10 (and the defined terms for “Competing Business,” “Geographic Area,” and “Term of Non-Competition” set forth in Section 1), “Company” shall have include the following meanings:Company and any of its Subsidiaries.
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide For the reasons and consideration specified in Section 8, Employee access to Confidential Information for use only hereby covenants and agrees that, during the Employment Period, and Employee acknowledges and agrees that the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill Term of the Company Group, and as an express incentive for the Company to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.
(b) During the Prohibited PeriodNon-Competition, Employee shall not, without the prior written approval of the Board, directly or indirectly, for Employee individually or on behalf of as an officer, director, manager, employee, stockholder, consultant, contractor, partner, member, joint venturer, agent, equity owner or in conjunction with any other person or entity of any naturecapacity whatsoever:
(i) engage in or participate within the Market Area in competition with any member of the Company Group in any aspect of the Businessown, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business manage, operate, join, control, be employed by, provide Competing Services to, or participate in the Market Area ownership, management, operation or control of or provision of Competing Services to, a Competing Business operating in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company GroupGeographic Area;
(ii) appropriate any Business Opportunity ofrecruit, hire, assist in hiring, attempt to hire, or relating tocontact or solicit with respect to hiring any Person who, at any member time during the 12 month period ending on the Date of Termination, was an employee of the Company; provided, that Employee may hire any Person that served as an administrative assistant assigned to Employee at the time Employee’s employment with the Company Group located in the Market Areaterminates;
(iii) solicit, canvass, approach, encourage, entice induce or attempt to induce any customer or supplier of any member employee of the Company Group to cease terminate, or lessen such customer’s or supplier’s business with in any member of way interfere with, the relationship between the Company Groupand any employee thereof; or
(iv) solicit, canvass, approach, encourage, entice induce or attempt to induce any employee customer, client, patient, supplier, service provider, or contractor of any member other business relation of the Company Group in the Geographic Area to terminate hiscease doing business with the Company, her or its employment or engagement in any way interfere with the relationship between the Company and any member such Person. Notwithstanding the foregoing, the Company agrees that Employee may own less than one percent of the outstanding voting securities of any publicly traded company that is a Competing Business so long as Employee does not otherwise participate in such competing business in any way prohibited by this Section 10. This Section 10(a) shall not apply in the event Company Groupbreaches any of its obligations under Section 5 or 6.
(b) Employee shall not make any negative or disparaging comments regarding the Company, its Subsidiaries or Affiliates or any of their respective officers, directors, shareholders, partners, members, managers, agents or employees (collectively, the “Representatives”), including regarding the performance of the Company, its Subsidiaries or Affiliates, or otherwise take any action that could reasonably be expected to adversely affect the Company, its Subsidiaries or Affiliates or the personal or professional reputation of any of their respective Representatives. Information required to be disclosed by Employee pursuant to any applicable law, court order, subpoena, process or governmental decree shall not constitute a violation or breach of this Section 10(b); provided, that Employee delivers written notice of such required disclosure to the Company promptly before making such disclosure if such notice is not prohibited by applicable law, court order, subpoena, process or governmental decree.
(c) Because Employee acknowledges that the geographic boundaries, scope of prohibited activities, and time duration of the difficulty preceding paragraphs in this Section 10 (including the defined terms for “Competing Business,” “Geographic Area,” and “Term of measuring economic losses Non-Competition” set forth in Section 1) are reasonable in nature and are no broader than are necessary to maintain the goodwill of the Company Group and the confidentiality of its Confidential Information and to protect the goodwill and other legitimate business interests of the Company, and also that the enforcement of such covenants would not cause Employee any undue hardship or unreasonably interfere with Employee’s ability to earn a livelihood. If Employee violates the covenants and restrictions in this Section 10 and the Company brings legal action for injunctive or other equitable relief, Employee agrees that the Company shall not be deprived of the benefit of the full period of the restrictive covenant, as a result of a breach or threatened breach of the covenants set forth time involved in obtaining such relief. Accordingly, Employee agrees that the provisions in Section 9 and in this 10(a) shall have a duration determined pursuant to Section 1010(a), and because of computed from the immediate and irreparable damage that would be caused to date the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach legal or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equityis granted.
(d) The covenants If any court in any jurisdiction determines that any portion of this Section 1010 (including the defined terms for “Competing Business,” “Geographic Area,” and “Term of Non-Competition” set forth in Section 1) is invalid or unenforceable within such jurisdiction under circumstances then existing, the remainder of this Section 10 (including the defined terms for “Competing Business,” “Geographic Area,” and each provision and portion hereof, are severable and separate, and the unenforceability “Term of any specific covenant (or portion thereofNon-Competition” set forth in Section 1) shall not affect thereby be affected and shall be given full effect without regard to the invalid or unenforceable provisions. If any court in any jurisdiction construes any of the provisions of any other covenant this Section 10 (or portion thereof). Moreover, in including the event any arbitrator or court defined terms for “Competing Business,” “Geographic Area,” and “Term of competent jurisdiction shall determine that the scope, time or territorial restrictions Non-Competition” set forth are unreasonablein Section 1) to be invalid or unenforceable within such jurisdiction under circumstances then existing, then it is the intention because of the parties that duration, scope or geographical area of such provision, such court shall be required to substitute the maximum duration, scope or geographical area reasonable under such circumstances within such jurisdiction for the stated period, scope or area with respect to such jurisdiction and such court shall be allowed to revise the restrictions be enforced contained herein to cover the fullest extent which such arbitrator or court deems reasonablemaximum duration, scope and area permitted by law, and this Agreement shall thereby be reformedto enforce such provision as so revised.
(e) The following As used in this Section 10 (and the defined terms for “Competing Business,” “Geographic Area,” and “Term of Non-Competition” set forth in Section 1), “Company” shall have include the following meanings:Company and any of its Subsidiaries.
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee access to Confidential Information for use only during For a period of two (2) years commencing on the Employment Closing Date (the “Restricted Period”), and Employee acknowledges and agrees that the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill of the Company Group, and as an express incentive for the Company to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.
(b) During the Prohibited Period, Employee Seller Parties shall not, without the prior written approval and shall not permit any of the Boardtheir Affiliates to, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in or participate within assist others in engaging in the Market Area in competition with any member of the Company Group Restricted Business; (ii) have an interest in any aspect Person that engages directly or indirectly in the Restricted Business in any capacity, including as a partner, shareholder, member, principal, agent or trustee; or (iii) intentionally interfere in any material respect with the business relationships between Buyer or any of its Affiliates engaged in the Restricted Business, including by on the one hand, and suppliers of Sellers included in the Purchased Assets pursuant to an Assumed Contract, on the other hand, provided, however, nothing in this Section 5.07(a) shall prohibit or otherwise restrict the Seller Parties or their respective Affiliates from owning or investing in a company engaged, directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, Restricted Business provided that if such Seller Party or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage inAffiliate has Control of such company, the assets comprising the Restricted Business in the Market Area in competitionof such company constitutes less than 10% of such company’s total assets; provided, further, that any acquisition or anticipated competition, with investment by any member of the Company Group Seller Party or its Affiliates in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities company that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group.
(c) Because of the difficulty of measuring economic losses to the Company Group as conducts pawn lending shall not be a result of a breach or threatened breach of the covenants set forth in Section 9 and in provisions of this Section 105.07(a). For purposes of this Agreement, “Restricted Business” shall mean, in each case only to the extent conducted through storefront or other retail physical presence in the Territory, (1) pawn lending, (2) small-balance, single-repayment, short-term cash advance credit transactions due to be repaid in full on borrowers’ payday and secured by check(s) or debit authorization(s), and because (3) small-balance, multiple installment, credit transactions with a term of 180 days or less, where the amount borrowed is scheduled to be repaid on the borrower’s payday and secured by check(s) or debit authorization(s) and on terms materially consistent with those offered by Sellers as of the immediate Closing Date. For the avoidance of doubt, the parties acknowledge and irreparable damage agree that would be caused nothing herein shall prohibit Seller Parties or their Affiliates (y) from conducting an online payday lending business without any direct or indirect retail storefront presence (other than one physical presence in each state if, and only to the members of the Company Group for which they would have no other adequate remedyminimum extent, the Company and each other member of the Company Group shall required by Law to conduct such business; provided, however, that if more than one physical presence is required by Law in any state, Seller Parties or their Affiliates may, with Buyer’s consent, not to be entitled to enforce the foregoing covenantsunreasonably withheld, establish additional physical presences in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available such state up to the Company and each other member of the Company Group at law and equityminimum number required by Law) or (z) from providing revolving or installment loans that are repaid through automatic payroll deductions by a customer’s employer.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Samples: Asset Purchase Agreement (Advance America, Cash Advance Centers, Inc.)
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee access to Confidential Information for use only during the Employment Period, and Employee acknowledges and agrees that the Company Group will shall be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill of the Company Group, and in consideration thereof and in consideration of the Company providing Employee with access to Confidential Information and as an express incentive for the Company to enter into this Agreement and employ Employee hereunderEmployee, Employee has voluntarily agreed to the covenants set forth in this Section 109. Employee further agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope all respects and purpose in all respectsnot oppressive, do not interfere with public interests, will shall not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and substantial and legitimate business interests.
(b) During Employee agrees that, during the Prohibited Period, Employee shall not, without the prior written approval of the Board, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in or participate within the Market Area in competition with any member of the Company Group in any aspect of the Business, including by which prohibition shall prevent Employee from directly or indirectly: (A) indirectly owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an officer, director, employee or consultant of, or loaning money to, or selling or leasing equipment or real estate to or otherwise being affiliated with, with any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with the Company Group, including any customer or supplier who was a customer or supplier of any member of the Company GroupGroup during the eighteen (18) month period preceding the Termination Date; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group, including any employee or contractor who was an employee or contractor of any member of the Company Group during the eighteen (18) month period preceding the Termination Date.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 8 and in this Section 109, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity. In addition, Employee acknowledges that money damages would not be a sufficient remedy for any breach of this Section 9 by Employee, and the Company Group shall be entitled to enforce the provisions of this Section 9, upon three (3) days prior notice to Employee, by terminating payments then owing to Employee under this Agreement.
(d) The covenants in this Section 109, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The For purposes of this Section 9, the following terms shall have the following meanings:
Appears in 1 contract
Samples: Employment Agreement (Daseke, Inc.)
Non-Competition; Non-Solicitation; Non-Disparagement. If the Awardee (whether during or after termination of employment with the Corporation and its Subsidiaries) (i) engages in the operation or management of a business (whether as owner, partner, officer, director, employee or otherwise) which is in competition with the Corporation or any of its Subsidiaries, (ii) induces or attempts to induce any customer, supplier, licensee or other individual, corporation or other business organization having a business relationship with the Corporation or any of its Subsidiaries to cease doing business with the Corporation or any of its Subsidiaries or in any way interferes with the relationship between any such customer, supplier, licensee or other person and the Corporation or any of its Subsidiaries, (iii) solicits any employee of the Corporation or any of its Subsidiaries to leave the employment thereof or in any way interferes with the relationship of such employee with the Corporation or any of its Subsidiaries, or (iv) makes any statements or comments, orally or in writing, of a defamatory or disparaging nature regarding the Corporation or any of its Subsidiaries (including but not limited to regarding any of their respective businesses, officers, directors, personnel, products or policies), the Committee may (a) The Company shall provide Employee access to Confidential Information for use only during the Employment Period, and Employee acknowledges and agrees that the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill cause all or a portion of the Company Group, and as an express incentive for shares subject to the Company RSUs remaining subject to enter into the Vesting Restrictions imposed by this Agreement and employ Employee hereunder, Employee has voluntarily agreed to be immediately forfeited to the covenants set forth in this Section 10. Employee agrees Corporation and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere Awardee shall have no further rights with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary respect to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.
such shares and/or (b) During require the Prohibited PeriodAwardee to promptly return and transfer, Employee shall notand thereby forfeit, without ownership to the prior written approval Corporation of all or a portion (at the discretion of the Board, directly Committee) of a number of shares of the Class A Common Stock equal to the number of shares of the Class A Common Stock which were issued or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in or participate transferred by the Corporation to the Awardee within the Market Area in competition with three (3) years immediately preceding any member such activity by the Awardee (or, at the discretion of the Company Group Committee, to pay to the Corporation in cash an amount equal to the Fair Market Value of such number of shares of the Class A Common Stock as of the date of the determination by the Committee under this Section 4), provided, however, that this Section 4 shall not apply if a Section 11 Event occurs prior to any such activity by the Awardee. Whether the Awardee has engaged in any aspect of the Business, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group activities referred to in the Market Areaimmediately preceding sentence shall be determined, or (B) joiningin its discretion, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, by the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10Committee, and because of any such determination by the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group Committee shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions final and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equitybinding.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Samples: Restricted Stock Unit Agreement (Matthews International Corp)
Non-Competition; Non-Solicitation; Non-Disparagement. (a) i. The Company shall provide Employee access to Confidential Information for use only during the Employment Period, and Employee acknowledges and agrees that the members of the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill of the members of the Company Group, and in consideration of the Company providing Employee with access to Confidential Information and as an express incentive for the Company to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interestsinterests of each member of the Company Group.
(b) ii. During the Prohibited Period, Employee shall not, without the prior written approval of the Board, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) 1. engage in, participate in or participate take preparatory steps that result in engagement or participation in the Business within the Market Area in competition with any member of the Company Group in any aspect of the BusinessArea, including by directly or indirectly: (A) owning, investing in, managing, controlling, participating in, consulting with, contributing to, lending one’s name to, providing assistance to, operating, or being an officer or director of, any business that competes with any member of the Company Group person or entity engaged in or preparing to engage in the Market AreaBusiness, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, or rendering services for, any person or entity engaged in, or planning to engage that has taken preparatory steps that result in engagement in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group or in any manner that requires Employee to learn of or use nonpublic, confidential, proprietary or trade secret information that is similar to the type of Confidential Information of which Employee learned or used at any member of the Company Group or in any manner that requires Employee to have client contacts or develop client relationships similar to the client contacts or the development of client relationships in which Employee engaged at any member of the Company Group;
(ii) 2. appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) 3. solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group which or with whom Employee had contact, was involved as part of Employee’s job responsibilities (including oversight responsibility) with any member of the Company Group and/or about whom Employee learned Confidential Information to cease or lessen such customer’s or supplier’s business with any member of the Company Group; orGroup or otherwise adversely interference with the relationship between any member of the Company Group and such customer or supplier;
(iv) 4. hire or engage any employee or contractor of any member of the Company Group with whom Employee had contact or solicit, canvass, approach, encourage, entice or induce any such employee or contractor of any member of the Company Group to terminate or reduce his, her or its employment or engagement with any member of the Company Group; or
5. attempt to do any of the foregoing.
(c) iii. Because of the difficulty of measuring economic losses to the members of the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(d) iv. The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformedreformed to make the restrictive covenants contained herein enforceable to maximum extent permitted by applicable law.
(e) v. The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company Seller hereby agrees that:
(i) Until the date that is twenty-four (24) months after the Closing Date, Seller shall provide Employee access not, directly or indirectly, alone or as a shareholder, partner, member, manager, officer, director, employee, agent or consultant of any other Person, engage in, or own, manage, operate or control any Person engaged in, the business of supplying formed titanium sheet products (including titanium super plastic formed, hot formed and diffusion bonded products) for the aerospace and defense markets; provided, however, that Seller may own or acquire less than 1% of the outstanding capital stock of any publicly traded company; provided, further, that nothing in this Section 5.9 shall prohibit or otherwise restrict any Acquiring Person or any of its Affiliates from engaging (directly or indirectly) in the business of supplying formed titanium sheet products (including titanium super plastic formed, hot formed and diffusion bonded products) for the aerospace and defense markets.
(ii) Until the date that is twenty-four (24) months after the Closing Date, Seller shall not, directly or indirectly, alone or as a shareholder, partner, member, manager, officer, director, employee, agent or consultant of any other Person, (A) hire, employ, engage, retain, recruit or solicit (or attempt or offer to Confidential Information for use only during do any of the Employment Period, and Employee acknowledges and agrees that the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill foregoing) any Person who is an employee of the Company Groupat the time any such action is taken (or who had been an employee of the Company within the twelve (12) month period prior to any such action being taken) or (B) cause, and as induce, encourage, entice or persuade (or attempt to do any of the foregoing) any Person who is an express incentive for employee of the Company to enter into leave or terminate his or her employment with the Company; provided, however, that nothing in this Agreement Section 5.9(a)(ii) shall prohibit Seller from (w) engaging in any of the acts contemplated by this Section 5.9(a)(ii) with respect to any Person whose employment with the Company was terminated after the Closing by the Company or Buyer, (x) soliciting any Person through means of a general solicitation, (y) hiring any Person whose employment with the Company was terminated by such Person and employ Employee hereunderwho initially seeks employment with Seller through no directed solicitation efforts of Seller, Employee has voluntarily agreed to or (z) engaging in any of the acts set forth on Schedule 5.9 hereto.
(iii) Until the date that is twenty-four (24) months after the Closing Date, Seller shall not solicit any customer of the Company for the purpose of supplying such customer with formed titanium sheet products (including titanium super plastic formed, hot formed and diffusion bonded products) for the aerospace and defense markets; provided, however, that nothing in this Section 5.9 shall prohibit or otherwise restrict any Acquiring Person or any of its Affiliates from soliciting (directly or indirectly) any customer of the Company for the purpose of supplying formed titanium sheet products (including titanium super plastic formed, hot formed and diffusion bonded products) for the aerospace and defense markets.
(iv) Seller shall not make any Disparaging remark, comment or statement, either orally or in writing, regarding Buyer or the Company, or any of their respective shareholders, directors, officers or employees. “Disparaging” remarks, comments or statements are those that impugn the character, honesty, integrity or morality or business acumen or abilities in connection with any aspect of the operation of business of the Person being disparaged.
(v) The covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, 5.9(a) are reasonable covenants under the circumstances and Seller further agrees that if in scope the opinion of any court of competent jurisdiction such covenants are not reasonable in any respect, such court shall have the right, power and purpose authority to excise or modify the provision or provisions of such covenants as to the court shall appear not reasonable and to enforce the remainder of the covenants as so amended. Seller agrees, solely for purposes of any attempt by Buyer to obtain an injunction for breach of any covenant contained in all respectsthis Section 5.9(a), do not interfere with public intereststhat any such breach would irreparably injure the Company and Buyer. Accordingly, will not cause Employee undue hardshipSeller agrees that Buyer, and are material and substantial parts in addition to pursuing any other remedies it may have at law or in equity, may obtain an injunction against Seller from any court having jurisdiction over the matter restraining any further violation of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interestsSection 5.9(a).
(b) During Buyer hereby acknowledges and agrees that:
(i) The Forming Business Employees may possess or have knowledge of confidential know-how or other information of a proprietary, secret or confidential nature which relates to the Prohibited PeriodCasting Business and, in order to assure to Seller the full value of the Casting Business, Buyer shall, and Buyer shall cause each of its Subsidiaries to, until the date that is twenty-four (24) months after the Closing Date, cause each such Forming Business Employee to not (x) disclose such information to any third party or (y) make use of such information in relation to the operation of any business that competes with the Casting Business, including any such business as may be owned or acquired by Buyer or any of its Subsidiaries after the Closing Date.
(ii) Until the date that is twenty-four (24) months after the Closing Date, Buyer shall not, without the prior written approval and Buyer shall cause each of the Boardits Subsidiaries not to, directly or indirectly, for Employee alone or on behalf as a shareholder, partner, member, manager, officer, director, employee, agent or consultant of or in conjunction with any other person or entity of any nature:
(i) engage in or participate within the Market Area in competition with any member of the Company Group in any aspect of the BusinessPerson, including by directly or indirectly: (A) owninghire, managingemploy, operatingengage, retain, recruit or being an officer solicit (or director of, attempt or offer to do any business that competes with any member of the Company Group in foregoing) any Person who is an employee of Seller at the Market Area, time any such action is taken (or who had been an employee of Seller within the twelve (12) month period prior to any such action being taken (other than a Forming Business Employee)) or (B) joiningcause, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approachinduce, encourage, entice or induce persuade (or attempt to do any customer or supplier of any member of the Company Group foregoing) any Person who is an employee of Seller to cease leave or lessen such customer’s terminate his or supplier’s business her employment with Seller; provided, however, that nothing in this Section 5.9(b)(ii) shall prohibit Buyer or any member of its Subsidiaries from (x) engaging in any of the Company Group; oracts contemplated by this Section 5.9(b)(ii) with respect to any Person whose employment with Seller was terminated after the Closing by Seller, (y) soliciting any Person through means of a general solicitation or (z) hiring any Person whose employment with Seller was terminated by such Person and who initially seeks employment with Buyer or any of its Subsidiaries through no directed solicitation efforts of Buyer or any of its Subsidiaries.
(iii) Buyer shall not, and Buyer shall cause each of its Subsidiaries not to, make any Disparaging remark, comment or statement, either orally or in writing, regarding Seller or any of its shareholders, directors, officers or employees.
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the The covenants set forth in Section 9 and in this Section 10, 5.9(b) are reasonable covenants under the circumstances and because each of the immediate Buyer and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, agrees that if in the event opinion of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdictionjurisdiction such covenants are not reasonable in any respect, without such court shall have the necessity right, power and authority to excise or modify the provision or provisions of showing any actual damages or that money damages would such covenants as to the court shall appear not afford an adequate remedy, reasonable and without to enforce the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member remainder of the covenants as so amended. Buyer and the Company Group’s exclusive remedy agree, solely for a purposes of any attempt by Seller to obtain an injunction for breach but instead shall be of any covenant contained in this Section 5.9(b), that any such breach would irreparably injure Seller. Accordingly, Buyer and the Company agree that Seller, in addition to all pursuing any other rights and remedies available to it may have at law or in equity, may obtain an injunction against Buyer and/or the Company and each other member from any court having jurisdiction over the matter restraining any further violation of the Company Group at law and equity.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof5.9(b). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Samples: Stock Purchase Agreement (Rti International Metals Inc)
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee access to Confidential Information for use only agrees that, during the Employment Period, and Employee acknowledges and agrees that the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill term of the Company Group, and as an express incentive for the Company to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed to for a period following the covenants set forth in this Section 10. Employee agrees and acknowledges that termination date of two years if the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect Employee’s employment is terminated by the Company Groupor one of its Affiliates for Cause or by the Employee without Good Reason or one year if the Employee’s Confidential Informationemployment is terminated for any other reason, goodwill and legitimate business interests.
(b) During the Prohibited Period, Employee shall will not, without the prior written approval of the Board, directly or indirectly, for Employee in any capacity whatsoever, either on the Employee’s own behalf or on behalf of or in conjunction with any other person Person with whom the Employee may be employed or entity of any natureotherwise associated:
(i) engage in or participate within the Market Area in competition with any member of the Company Group in any aspect of the Businessinvest in, including by directly or indirectly: (A) owningown, managingmanage, operatingoperate, or being finance, control, acquire an officer or director ofinterest in, any business that competes with any member of the Company Group in the Market Areabe employed by, or (B) joiningrender services to, becoming act as an employee or consultant agent on behalf of, or otherwise being affiliated with, in any person or entity engaged way participate in, associate with or allow her skill, knowledge, experience or reputation to be used by (whether as a proprietor, partner, stockholder, member, director, officer, employee, joint venturer, investor, consultant, agent, sales representative, broker or other participant) any Person engaged in or planning to engage in, become engaged in the Business within the United States; provided, however, that the Employee may own passive investments in the Market Area in competition, or anticipated competition, with any member not more than 1% of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf outstanding securities of any member Person engaged in such Business (but without otherwise participating in such similar business) if such securities are registered under Section 12 of the Company GroupSecurities Exchange Act of 1934, as amended;
(ii) appropriate contact any Business Opportunity of, or relating to, any member customer of the Company Group located in or its Affiliates to solicit, divert or entice away the Market Areabusiness of such customer, or otherwise disrupt the relationship between such customer and the Company or its Affiliates;
(iii) solicit, canvassinduce, approachinfluence or attempt to influence any supplier, encouragelessor, entice lessee, licensor, partner, joint venturer, potential acquiree or induce any customer other person who has a business relationship with the Company or supplier its Affiliates, or who on the termination date is engaged in discussions or negotiations to enter into a business relationship with the Company or its Affiliates, to discontinue, reduce or limit the extent of such relationship with the Company or any member of its Affiliates;
(iv) make contact with any employee of the Company Group to cease or lessen its Affiliates for the purpose of soliciting such customeremployee for hire, whether as an employee, independent contractor, consultant or otherwise, or otherwise disrupting such employee’s or supplier’s business relationship with any member of the Company Groupor its Affiliates; or
(ivv) solicitmake any statement or disclose any information to any customers, canvasssuppliers, approachlenders, encouragelessors, entice or induce any employee or contractor of any member licensees, other employees of the Company Group to terminate his, her or its employment Affiliates or engagement others that is defamatory or derogatory with any member respect to the business, operations, management or other employees of the Company Groupor its Affiliates, or take any other action (excluding making truthful, non-defamatory statements in good faith that do not violate any other provision of this Agreement) that could reasonably be expected to injure the Company in its business relationships with any of the foregoing parties or result in any other detrimental effect on the Company or its Affiliates.
(cb) Because The Employee agrees that: (i) the covenants and agreements set forth in this Article IV are reasonable both in scope of geographical area and duration, (ii) the Company would not have entered into this Agreement but for such covenants of the difficulty of measuring economic losses to the Company Group Employee, (iii) such covenants have been made as a result of a breach arm-length bargaining in order to induce the Company to enter into this Agreement, and (iv) such covenants and agreements are reasonable and necessary for the protection of the Confidential Information, assets, goodwill and business of the Company. Employee further agrees that the phrase “any Person engaged in or threatened breach planning to become engaged in the Business within the United States,” as used in Section 4.2(a)(i) above, shall include AT&T Inc., Cincinnati Bell Inc., Comcast Corporation, Consolidated Communications Holdings Inc., Crown Castle International Corp., Dish Network Corp., EchoStar Corporation, IDT Corp., Liberty Global plc, Mitel Networks Corp., Telephone & Data Systems Inc., TELUS Corp., Viacom, Inc., Viasat, Inc., Zayo Group Holdings, Inc., XO Holdings, Inc., Sprint Nextel Corporation, tw telecom inc., Verizon Communications Inc., Limelight Networks, Inc., Akamai Technologies Inc., Reliance Communications Venture Limited, including in each case their affiliates, successors, and assigns. To the extent permitted by applicable law, the Employee covenants and agrees not to institute, maintain, prosecute or in any way aid in the institution, maintenance or prosecution of any lawsuit, action, claim, arbitration or other proceeding against the Company or any of its Affiliates with respect to the enforceability of the covenants set forth in Section 9 and contained in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equityArticle IV.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Samples: Change of Control Agreement (Lumen Technologies, Inc.)
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee access to Confidential Information for use only during the Employment Period, and Employee Executive acknowledges and agrees that the Company Group will would be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill of the Company Group, and as an express incentive for the Company irreparably harmed if Executive were to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.
(b) During the Prohibited Period, Employee shall not, without the prior written approval of the Board, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in or participate within Competition with the Market Area in competition with any member of the Company Group in within the restricted time periods and geographical areas set forth herein, (ii) solicit employees, or (iii) otherwise induce any aspect supplier, vendor, licensee, distributor, contractor or other business relation of the Business, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Areato cease doing business with, or (B) joining, becoming an employee or consultant materially alter its business relationship with any member of, the Company Group. Executive further acknowledges and agrees that the covenants set forth in Section 10 and in this Section 11 represent reasonable measures to protect the business interests, including the Company Confidential Information, of the Company Group.
(a) In further consideration of the granting of the Company’s undertakings set forth herein, Executive agrees that:
(i) during the period beginning on the Separation Date and ending on the six month anniversary of the expiration or otherwise being affiliated withtermination of the Consulting Term (the “Non-Competition Period”), Executive shall not directly or indirectly engage in, and shall cause any person or entity engaged in, or planning controlled by Executive not to engage in, Competition. Notwithstanding anything to the Business contrary contained herein, Executive shall not be prohibited from owning up to one percent of the outstanding equity securities of a person that is engaged in Competition and that is publicly traded on a national securities exchange or in the Market Area over the counter market so long as Executive, other than with respect to such ownership, shall not engage in competitionany activity with such person that otherwise would constitute Competition;
(ii) during the Non-Competition Period, Executive shall not, directly or anticipated competitionindirectly, with and shall cause any person controlled by Executive not, to: (A) induce or attempt to induce any employee of the Company or any of its affiliates or any distributor of any member of the Company Group in any capacity (with respect to this clause leave the employ of such individual’s employer; (B)) in which Employee’s duties hire or responsibilities are offer to hire any person who is, or within the same as preceding six-month period was, an employee of or similar consultant to any member of the duties Company Group or responsibilities that Employee had on behalf any distributor of any member of the Company Group;
; or (iiC) appropriate any Business Opportunity of, induce or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or attempt to induce any customer supplier, vendor, licensee, distributor, employee of any distributor, contractor or supplier other business relation of any member of the Company Group to cease doing business with, or lessen materially alter its business relationship with, such customer’s or supplier’s business with any member of the Company Groupperson; orand
(iviii) at all times following the Separation Date, Executive shall not disparage, or make or solicit, canvassor encourage others to make or solicit, approach, encourage, entice any derogatory or induce any employee negative statement or contractor of communication about any member of the Company Group or any of their respective businesses, products, services or activities; provided, however, that such restriction shall not prohibit or constrain testimony compelled by valid legal process or valid dispute resolution process.
(b) Executive hereby acknowledges and agrees that the enforcement of the provisions of Section 10 and this Section 11 may potentially interfere with Executive’s ability to terminate hispursue a similar livelihood during the periods set forth therein. Executive acknowledges and agrees that the Company entered into this Agreement in reliance on the provisions of Section 10 and this Section 11 and the enforcement of this Agreement is necessary to ensure the preservation, her or protection and continuity of the business, trade secrets and other confidential information and goodwill of the Company and its employment or engagement with affiliates to the extent and for the periods of time expressly agreed to herein. Executive agrees that, due to the nature of the business of the Company and its affiliates, the restrictions set forth in this Agreement (including in Section 10 and in this Section 11) are reasonable as to time and scope.
(c) Notwithstanding any provision to the contrary herein, (i) each member of the Company Group may pursue, at its discretion, enforcement of Section 10 and this Section 11 in any court of competent jurisdiction (each a “Court”), and (ii) in no event shall any member of the Company GroupGroup be held liable for Executive’s legal fees or costs in pursuit of such claim, unless there is a final determination by such Court that the applicable member of the Company Group acted in bad faith.
(cd) Because The parties hereto agree that money damages would not be an adequate remedy for any breach of the difficulty of measuring economic losses to the Company Group as a result of a breach Section 10 or threatened this Section 11, and any breach of the covenants set forth in terms of Section 9 and 10 or in this Section 10, 11 would result in irreparable injury and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenantswould have an adequate remedy at law. Therefore, in the event of a breach or a threatened breachbreach of Section 10 or in this Section 11, by injunctions the Company Group, each of their affiliates and restraining orders their respective successors or assigns, in addition to any other rights and remedies existing in their favor at law or in equity, shall be entitled to specific performance or immediate injunctive or other equitable relief from a Court in order to enforce, or prevent any court violations of, the provisions of competent jurisdiction, Section 10 or this Section 11 (without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any a bond or other security), without having to prove damages. The aforementioned equitable relief terms of this Section 11(d) shall not be the Company’s or prevent any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of from pursuing any other covenant (available remedies for any breach or portion thereof). Moreover, in the event any arbitrator or court threatened breach of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformedAgreement.
(e) The following terms shall have For purposes hereof, “Competition” means to directly or indirectly own any interest in, manage, operate, control, invest or acquire an interest in, participate in, consult with, render services for, operate or in any manner engage in any business or enterprise (including any division, group or franchise of a larger organization), whether as a proprietor, owner, member, partner, stockholder, director, officer, employee, consultant, joint venturer, investor, sales representative or other participant, in which any member of the following meanings:Company Group engaged at any time during the two-year period immediately preceding Executive’s action (the “Reference Date”) or engages in or has plans to engage in -as a potential new line of business as of the Reference Date, in each case, anywhere in the world.
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide a. Employee agrees and acknowledges that, in connection with Employee’s employment with the Company, Employee will be provided with access to Confidential Information for use only during and become familiar with confidential and proprietary information and trade secrets belonging to the Employment PeriodCompany and its Affiliates, including, without limitation, “know how,” trade secrets, inventions, ideas, processes, computer source and object code, data, formulae, programs, other works of authorship, improvements, discoveries, developments, designs, techniques, customer lists, pricing policies, operational methods, and Employee acknowledges documents and agrees that the Company Group will be entrusting Employeeinformation with respect to present and prospective plans for research and development, in Employee’s unique financial statements, budgets, contracts, goods, services, products, equipment, processes, clients, customers, agents, employees, contractors, suppliers, service providers, sales and special capacitymarketing methods, with developing the goodwill and other business affairs, discussions, negotiations, or agreements of the Company Groupand its Affiliates (collectively, “Confidential Information”). Confidential Information does not include: (1) information that was already known to Employee prior to the Effective Date without restriction on its use or disclosure; (2) information that was independently developed by Employee without reference to or use of any Confidential Information; or (3) information that is or becomes generally known or available to the public through no wrongful act of either Employee or any third party. Employee and as the Company also recognize that an express incentive important part of Employee’s duties will be to develop and continue goodwill for the Company and its Affiliates through personal contact with the customers of the Company and its Affiliates. Accordingly, in consideration of Employee’s employment with the Company pursuant to enter into this Agreement Agreement, and employ Employee hereunderother good and valuable consideration, the sufficiency of which is hereby acknowledged, Employee agrees that, while Employee is in the employ of the Company and for a period of one (1) year following Employee’s termination of employment, Employee shall not, either on Employee’s own behalf or on behalf of any third party, directly or indirectly:
i. except on behalf of the Company or its Affiliates, directly or indirectly, either as a proprietor, equity holder, partner, joint venturer, investor, lender, principal, agent, officer, director, employee or otherwise (other than as a holder of not more than one percent (1%) of the total outstanding stock of (x) a publicly held company or (y) on a passive basis, a non-publicly held company held either directly or through investments in mutual, hedge or private equity funds), and whether through Employee’s own efforts or through the efforts of, or in any way assisting or employing the assistance of, any other person or entity (including, without limitation, any consultant or any person employed by or associated with any entity with whom Employee is employed or associated) engage in any Competitive Business (as defined below) (provided that in the case of the Employee being engaged by a Competitive Business after Employee’s engagement by the Company has voluntarily agreed ceased, Employee performs duties that are the same or similar to those performed for the Company and/or that would require or permit the Employee to use Confidential Information and provided, further, that for the avoidance of doubt Employee shall not be engaged in a Competitive Business if Employee is employed by an entity which engages in a Competitive Business but Employee provides services solely to a unit, division, subsidiary or affiliate that is not engaged in a Competitive Business); or
ii. (x) recruit, solicit, encourage, or attempt to cause (or in any way assist another in recruiting, soliciting, encouraging, or attempting to cause) any employee, consultant, or contractor of or for the Company or its subsidiaries to terminate his/her/its employment or other relationship with the Company or its subsidiaries (y) hire, employ, or seek to employ, or cause, recommend, or assist any competing individual or entity to hire, employ, or seek to employ, any person or entity who or that is (or was at any time within the one (1) year period prior to the termination of Employee’s employment) employed or engaged by the Company or its subsidiaries, other than consultants or contractors who do not provide services primarily to the Company or its subsidiaries (provided that, with respect to periods after the Employee’s engagement by the Company has ceased, the Employee solicits any such person or entity for a position that would result in such person or entity being directly involved in a Competitive Business or otherwise would allow or require that person or entity to use Confidential Information), or (z) solicit, aid or induce any customer, client, supplier, licensee, advertiser, vendor or any other business relation of the Company or its subsidiaries to cease doing business with the Company or its subsidiaries or reduce the amount of business conducted with the Company or its subsidiaries, or directly interfere with the relationship between the Company or its subsidiaries and any customer, client, supplier, licensee, advertiser, vendor or any other business relation of the Company or its subsidiaries. The foregoing restrictions shall not prevent Employee from posting a general solicitation for employment or from hiring an individual who responds to a general solicitation for employment as long as Employee is not otherwise violating this Section 2.a.ii.
b. During and after employment, Employee agrees not to disparage the Company, or issue any communication, written or otherwise, that reflects adversely on or encourages any adverse action against the Company. The Company agrees that its current executive officers and directors will not disparage you while they are employed or engaged by the Company. The foregoing non-disparagement obligations shall not apply to the following actions (i) if testifying truthfully under oath pursuant to any lawful court order, deposition notice, or subpoena, (ii) otherwise responding to or providing disclosures required by law, including disclosures reasonably intended to comply with securities laws or exchange listing standards, (iii) as otherwise allowed by applicable law in the course of performing obligations of the party, or (iv) in any litigation between Employee and Company. This includes any statement to or response to an inquiry by any member of the press or media, whether written, verbal, electronic or otherwise. In addition, Employee agrees that, while Employee is in the employ of the Company, Employee shall not, either on Employee’s own behalf or on behalf of any third party, directly or indirectly, participate in any expert network calls or similar discussions or meetings regarding the Company. Employee further agrees that, while employed by or after termination of Employee’s employment with the Company, Employee shall not, either on Employee’s own behalf or on behalf of any third party, directly or indirectly: (x) disclose, use, lecture upon, publish, or divulge to any third party, any of Company’s Confidential Information or information relating to or regarding any Company Inventions, except as may be required in connection with Employee’s work for Company, or as expressly authorized by the Chief Executive Officer or Board of Directors of the Company; or (y) use or allow to be used any trade or business name, or other words, symbol, logo, or means of identification which is similar to one used by the Company or any of its Affiliates.
c. As used herein, “Competitive Business” means any business involved in developing, marketing or selling access control and monitoring hardware related products that allow an organization and/or individual to control and monitor access to a workspace, living area, or any owned, leased, or rented property (or other material product lines adopted by the Company from time to time)
d. The parties agree that the relevant public policy aspects of covenants not to compete have been discussed, and that every effort has been made to limit the restrictions placed upon Employee to those that are reasonable and necessary to protect the Company’s legitimate interests. Employee acknowledges that, based upon Employee’s education, experience, and training, the restrictions herein will not prevent Employee from earning a livelihood and supporting Employee and Employee’s family at any time.
e. If any restriction set forth in this Section 102 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or geographic area, it shall be interpreted to extend over the maximum period of time, range of activities or geographic areas as to which it may be enforceable.
f. The restrictions contained in this Section 2 are necessary for the protection of the business and goodwill of the Company and/or its Affiliates and are considered by Employee to be reasonable for such purposes. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are any material and substantial parts breach of this Agreement intended and necessary to prevent unfair competition and to protect Section 2 will cause the Company Group’s Confidential Informationand/or its Affiliates substantial and irrevocable damage and, goodwill and legitimate business interests.
(b) During the Prohibited Period, Employee shall not, without the prior written approval of the Board, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in or participate within the Market Area in competition with any member of the Company Group in any aspect of the Business, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenantstherefore, in the event of a breach or threatened any such breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all such other rights and remedies available to which may be available, the Company and each other member of the Company Group at law and equity.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meanings:right to seek specific performance, injunctive and other equitable relief.
Appears in 1 contract
Samples: Employment Agreement (Latch, Inc.)
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee access to Confidential Information for use only during the Employment Period, and Employee acknowledges and agrees that the Company Group will shall be entrusting Employee, in Employee’s 's unique and special capacity, with developing the goodwill of the Company Group, and in consideration thereof and in consideration of the Company providing Employee with access to Confidential Information and as an express incentive for the Company to enter into this Agreement and employ Employee hereunderEmployee, Employee has voluntarily agreed to the covenants set forth in this Section 109. Employee further agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope all respects and purpose in all respectsnot oppressive, do not interfere with public interests, will shall not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s 's Confidential Information, goodwill and substantial and legitimate business interests.
(b) During Employee agrees that, during the Prohibited Period, Employee shall not, without the prior written approval of the Board, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in or participate within the Market Area in competition with any member of the Company Group in any aspect of the Business, including by which prohibition shall prevent Employee from directly or indirectly: (A) indirectly owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an officer, director, employee or consultant of, or loaning money to, or selling or leasing equipment or real estate to or otherwise being affiliated with, with any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s 's or supplier’s 's business with the Company Group, including any customer or supplier who was a customer or supplier of any member of the Company GroupGroup during the eighteen (18) month period preceding the Termination Date; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group, including any employee or contractor who was an employee or contractor of any member of the Company Group during the eighteen (18) month period preceding the Termination Date.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 8 and in this Section 109, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s 's or any other member of the Company Group’s 's exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity. In addition, Employee acknowledges that money damages would not be a sufficient remedy for any breach of this Section 9 by Employee, and the Company or its Affiliates shall be entitled to enforce the provisions of this Section 9 by terminating payments then owing to Employee under this Agreement.
(d) The covenants in this Section 109, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The For purposes of this Section 9, the following terms shall have the following meanings:
Appears in 1 contract
Samples: Employment Agreement (Daseke, Inc.)
Non-Competition; Non-Solicitation; Non-Disparagement. If the Awardee (whether during or after termination of employment with the Corporation and its Subsidiaries) (i) engages in the operation or management of a business (whether as owner, partner, officer, director, employee or otherwise) which is in competition with the Corporation or any of its Subsidiaries, (ii) induces or attempts to induce any customer, supplier, licensee or other individual, corporation or other business organization having a business relationship with the Corporation or any of its Subsidiaries to cease doing business with the Corporation or any of its Subsidiaries or in any way interferes with the relationship between any such customer, supplier, licensee or other person and the Corporation or any of its Subsidiaries, (iii) solicits any employee of the Corporation or any of its Subsidiaries to leave the employment thereof or in any way interferes with the relationship of such employee with the Corporation or any of its Subsidiaries, or (iv) makes any statements or comments, orally or in writing, of a defamatory or disparaging nature regarding the Corporation or any of its Subsidiaries (including but not limited to regarding any of their respective businesses, officers, directors, personnel, products or policies), the Committee may (a) The Company shall provide Employee access to Confidential Information for use only during the Employment Period, and Employee acknowledges and agrees that the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill cause all shares of the Company Group, Restricted Stock remaining subject to the employment and as an express incentive for the Company to enter into stock performance restrictions imposed by this Agreement and employ Employee hereunder, Employee has voluntarily agreed to be immediately forfeited to the covenants set forth in this Section 10. Employee agrees Corporation and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere Awardee shall have no further rights with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary respect to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.
such shares and/or (b) During require the Prohibited PeriodAwardee to promptly return and transfer, Employee shall notand thereby forfeit, without ownership to the prior written approval Corporation of all or a portion (at the discretion of the Board, directly Committee) of a number of shares of the Class A Company Stock equal to the number of shares of the Restricted Stock which were issued or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in or participate transferred by the Corporation to the Awardee within the Market Area in competition with three (3) years immediately preceding any member such activity by the Awardee (or, at the discretion of the Company Group Committee, to pay to the Corporation in cash an amount equal to the fair market value of such number of shares of the Class A Common Stock as of the date of the determination by the Committee under this Section 5), provided, however, that this Section 5 shall not apply if a Section 11 Event occurs prior to any such activity by the Awardee. Whether the Awardee has engaged in any aspect of the Business, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group activities referred to in the Market Areaimmediately preceding sentence shall be determined, or (B) joiningin its discretion, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, by the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10Committee, and because of any such determination by the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group Committee shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions final and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equitybinding.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Samples: Restricted Stock Agreement (Matthews International Corp)
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company Seller understands that Buyer shall provide Employee access be entitled to Confidential Information for use only during protect and preserve the Employment Period, and Employee acknowledges and agrees that the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill going-concern value of the Company Group, Business to the extent permitted by Law and as an express incentive for the Company not otherwise provided pursuant to enter this Agreement and that Buyer would not have entered into this Agreement and employ Employee hereunder, Employee has voluntarily agreed to absent the covenants set forth in provisions of this Section 105.5. Employee agrees and acknowledges that Therefore, from the limitations and restrictions set forth hereinClosing Date until the fifth anniversary of the Closing Date (the “Restricted Period”), including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.
(b) During the Prohibited Period, Employee Seller shall not, without and shall cause the prior written approval individuals on Section 5.5(a) of the BoardDisclosure Schedule (the “Restricted Persons”) not to, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in or participate within a Competitive Business Activity (as defined below) anywhere in the Market Area in competition with any member of world (the Company Group in any aspect of “Restricted Territory”). For all purposes hereof, the Business, including by term “Competitive Business Activity” shall mean directly or indirectly: (Ai) owningengaging in, or managing, operatingadvising, instructing or being an officer or director ofdirecting persons engaged in, any business that competes with creates, designs, develops, manufactures, markets, licenses, distributes, sells, implements, supports or otherwise exploits any member service or product which is substitutable for or includes the same or substantially similar functionality (or intended functionality) as the Covered Products; (ii) acquiring or having an ownership interest in any entity that creates, designs, develops, manufactures, markets, licenses, distributes, sells, implements or supports any product or service which is substitutable for or includes the same or substantially similar functionality (or intended functionality) as the Covered Products (except for passive ownership of (A) Buyer or a Successor Entity, as applicable (B) one percent or less of any entity whose securities have been registered under the Securities Act or Section 12 of the Company Group Securities Exchange Act of 1934, as amended (the “Exchange Act”) or whose equity securities are listed on any other major national or international stock exchange (a “Public Company”) or (C) one percent or less of any entity other than a Public Company); (iii) participating in any capacity (whether as an employee, agent, consultant, advisor, independent contractor, proprietor, partner, officer, director, joint venturer or otherwise) in the Market Areafinancing, operation, management or control of any firm, partnership, corporation, entity or business that creates, designs, develops, manufactures, licenses, markets, distributes, sells, implements or supports any product or service which is substitutable for or includes the same or substantially similar functionality (or intended functionality) as the Covered Products; or (iv) utilizing their knowledge of the Business or their relationships with customers, suppliers or others to (A) engage or facilitate others to engage in any facet of the Business in the Restricted Territory; or (B) joininginduce or encourage such customers, becoming an employee suppliers or consultant ofothers to cease buying from, supplying to or otherwise being affiliated working with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company GroupBuyer.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Samples: Asset Purchase Agreement (Cytori Therapeutics, Inc.)
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee access to Confidential Information for use only a. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Employer and its affiliates and accordingly agrees that, during the Employment PeriodTerm and, and Employee acknowledges and agrees that for a period of one year following any termination of Executive's employment with the Company Group (the "Restricted Period"), Executive will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill of the Company Group, and as an express incentive for the Company to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.
(b) During the Prohibited Period, Employee shall not, without the prior written approval of the Board, directly or indirectly, for Employee whether on Executive's own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other person business organization, entity or entity enterprise whatsoever ("Person"), directly or indirectly engage in any business that directly or indirectly competes in any material way with the primary business of any nature:the Company, or otherwise engage in competition with the Company which is materially detrimental to the Company;
(i) engage During the Restricted Period, Executive will not, whether on Executive's own behalf or on behalf of or in or participate within the Market Area in competition conjunction with any member Person, directly or indirectly:
(A) solicit or encourage any employee of the Company Group in any aspect of or its affiliates to leave the Business, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member employment of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Groupits affiliates; or
(ivB) solicit, canvass, approach, encourage, entice hire any such employee who was employed by the Company or induce any employee its affiliates as of the date of Executive's termination of employment with the Company or contractor of any member who left the employment of the Company Group to terminate his, her or its affiliates coincident with, or within one year prior to or after, the termination of Executive's employment with the Company.
b. Executive shall not at any time issue any press release or engagement with make any member public statement about the Company or any director, officer, employee, successor, parent, subsidiary or agent or representative of, or attorney to the Company (any of the foregoing, a "Company Group.
Affiliate") regarding (i) any of the foregoing's financial status, business, services, business methods, compliance with laws, or ethics or otherwise, or (ii) regarding Company partners, personnel, directors, officers, employees, attorneys, agents, including, without limitation, in respect of both clauses (i) and (ii), any statement that is intended or reasonably likely to disparage the Company or any Company Affiliate, or otherwise degrade any Company Affiliate's reputation in the business, industry or legal community in which any such Company Affiliate operates and, the Company shall not at any time issue any press release or make any public statement about Executive or his spouse that is intended or reasonably likely to disparage Executive's reputation in the business, industry or legal community or otherwise degrade his or her reputation or standing in their community; provided, that, Executive and the Company shall be permitted to (a) make any statement that is required by applicable securities or other laws to be included in a filing or disclosure document, subject to prior notice to the other thereof, and (b) defend himself or itself against any statement made by the other party that is intended or reasonably likely to disparage or otherwise degrade that party's reputation, only if there is a reasonable belief that the statements made in such defense are not false statements and (c) Because of the difficulty of measuring economic losses to provide truthful testimony in any legal proceeding.
c. It is expressly understood and agreed that although Executive and the Company Group as a result of a breach or threatened breach of consider the covenants set forth in Section 9 and restrictions contained in this Section 109 to be reasonable, and because if a final judicial determination is made by a court of competent jurisdiction that the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no time or territory or any other adequate remedyrestriction contained in this Agreement is an unenforceable restriction against Executive, the Company and each other member provisions of the Company Group this Agreement shall not be rendered void but shall be entitled deemed amended to enforce the foregoing covenantsapply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, in the event of a breach or threatened breach, by injunctions and restraining orders from if any court of competent jurisdiction, without the necessity of showing jurisdiction finds that any actual damages or that money damages would not afford an adequate remedyrestriction contained in this Agreement is unenforceable, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall such restriction cannot be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition amended so as to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(d) The covenants in this Section 10make it enforceable, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) such finding shall not affect the provisions enforceability of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such other restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformedcontained herein.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. (a) i. The Company shall provide Employee Executive access to Confidential Information for use only during the Employment Period. Moreover, and Employee Executive acknowledges and agrees that the Company Group will be entrusting Employee, in Employee’s unique and special capacity, entrust Executive with developing and maintaining substantial relationships with prospective or existing customers, vendors, and clients of the Company and developing and maintaining the goodwill of the Company Group, Company. In consideration of the foregoing and as an express incentive for the Company to enter into this Agreement and employ Employee Executive hereunder, Employee has Executive voluntarily agreed agrees to the covenants set forth in this Section 109. Employee Executive agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, herein are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee Executive undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the legitimate business interests of the Company Group’s Confidential Information, goodwill and legitimate business interests.
(b) ii. During the Prohibited Period, Employee Executive shall not, without the prior written approval of the Board, directly or indirectly, for Employee Executive or on behalf of or in conjunction with any other person or entity of any natureentity:
(i) engage in 1. render managerial, employment, executive, or participate within consulting services of the Market Area in competition with any member type provided by Executive to or on behalf of the Company Group in any aspect of within the Business, including by directly or indirectly: two (A2) owning, managing, operating, or being an officer or director of, any business that competes with any member of years prior to the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, Termination Date to any person or entity engaged inthat engages in or owns, invests in any material respect, operates, manages or planning controls any venture or enterprise which substantially engages or proposes to substantially engage in, in the Business in the Market Area Area. Notwithstanding the foregoing, nothing in competition, or anticipated competition, with this Agreement shall be deemed to prohibit the passive ownership by Executive of not more than five percent (5%) of any member class of the Company Group in securities of any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar corporation having a class of securities registered pursuant to the duties or responsibilities that Employee had on behalf Securities Exchange Act of any member of the Company Group1934, as amended;
(ii) 1. appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) 1. solicit, canvass, approach, encourage, entice entice, or induce any customer or supplier of any member of the Company Group which or with whom Executive had contact, was involved as part of Executive’s job responsibilities (including oversight responsibility) with the Company Group and/or about whom Executive learned Confidential Information to cease or lessen such customer’s or supplier’s business with any member of the Company Group; orGroup or otherwise adversely interfere with the relationship between the Company Group and such customer or supplier;
(iv) 1. solicit, canvass, approach, encourage, entice entice, or induce any employee or contractor of any member of the Company Group to terminate or reduce his, her her, or its employment or engagement with any member of the Company Group; or
1. attempt to do any of the foregoing.
(c) iii. Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 8 and in this Section 109, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other securitybond. The aforementioned equitable relief shall not be the Company’s or any other member of limit the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(d) iv. The covenants in this Section 109, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in In the event any arbitrator or a court of competent jurisdiction shall determine determines that the scope, time time, or territorial restrictions set forth are unreasonable, then it is the intention intent of the parties Parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformedreformed to make the covenants contained enforceable to the maximum extent permitted by applicable law.
(e) v. The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee access to Confidential Information for use only during the Employment Period, and Employee acknowledges and agrees that the Company Group will shall be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill of the Company Group, and in consideration thereof and in consideration of the Company providing Employee with access to Confidential Information and as an express incentive for the Company to enter into this Agreement and employ Employee hereunderEmployee, Employee has voluntarily agreed to the covenants set forth in this Section 109. Employee further agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope all respects and purpose in all respectsnot oppressive, do not interfere with public interests, will shall not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and substantial and legitimate business interests.
(b) During Employee agrees that, during the Prohibited Period, Employee shall not, without the prior written approval of the Board, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in or participate within the Market Area in competition with any member of the Company Group in any aspect of the Business, including by which prohibition shall prevent Employee from directly or indirectly: (A) indirectly owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an officer, director, employee or consultant of, or loaning money to, or selling or leasing equipment or real estate to or otherwise being affiliated with, with any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with the Company Group, including any customer or supplier who was a customer or supplier of any member of the Company GroupGroup during the eighteen (18) month period preceding the Termination Date; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group, including any employee or contractor who was an employee or contractor of any member of the Company Group during the eighteen (18) month period preceding the Termination Date.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 8 and in this Section 109, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.. In addition, Employee acknowledges that money damages would not be a sufficient remedy for any breach of this Section 9 by Employee, and the Company or its Affiliates shall be entitled to enforce the provisions of this Section 9 by terminating payments then owing to Employee under this Agreement.
(d) The covenants in this Section 109, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The For purposes of this Section 9, the following terms shall have the following meanings:
Appears in 1 contract
Samples: Employment Agreement (Daseke, Inc.)
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee access Each Seller Group Member hereby acknowledges that it is familiar with the Transferred Companies’ trade secrets and with other Confidential Information. Each Seller Group Member acknowledges and agrees that Buyer and the Transferred Companies would be irreparably damaged if it were to Confidential Information for use only during breach the Employment Period, provisions of this Section 9.2 and Employee that any such breach could result in a significant loss of goodwill by Buyer and the Transferred Companies. Each Seller Group Member further acknowledges and agrees that the Company Group will be entrusting Employee, covenants and agreements set forth in Employee’s unique and special capacity, with developing the goodwill of the Company Group, and as an express incentive for the Company this Section 9.2 were a material inducement to Buyer to enter into this Agreement and employ Employee to perform its obligations hereunder, Employee has voluntarily agreed to and that Buyer would not obtain the covenants benefit of the bargain set forth in this Agreement as specifically negotiated by the parties hereto if such Seller Group Member breached the provisions of this Section 109.2. Employee agrees Therefore, each Seller Group Member agrees, in further consideration of the amounts to be paid hereunder for the Transferred Membership Interests and the goodwill of the Transferred Companies sold (or caused to be sold) by Seller, that during the period commencing on the Closing and ending on the earlier to occur of (i) three years after the end of the term of the Put/Call Period, or (ii) the date the Company is no longer a Subsidiary of Parent (the “Restricted Period”), such Seller Group Member shall not (and shall cause its Affiliates and Subsidiaries not to) directly or indirectly own any interest in, manage, control, participate in (whether as an officer, director, employee, partner, agent, representative or otherwise), consult with, render services for, or in any other manner engage anywhere in the Restricted Territories (as defined below) in any Competing Business; provided, that nothing herein shall prohibit (i) such Seller Group Member or any of its Affiliates from being a passive owner of not more than 5% of the outstanding stock of any class of a corporation which is publicly traded so long as none of such Persons has any active participation in the business of such corporation, and (ii) the participation in and conduct of the business of Bbeautiful (dba Chrislie Formulations) by Xxxxx Arminak, except as it is limited by her Employment Agreement. Each Seller Group Member acknowledges that the limitations Transferred Companies’ business has been conducted or is presently proposed to be conducted throughout the world (the “Restricted Territories”) and that the geographic restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, above are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interestsof the Transferred Companies’ businesses.
(b) During Each Seller Group Member agrees that during the Prohibited PeriodRestricted Period it shall not (and shall cause its Affiliates and Subsidiaries not to) directly, Employee shall notor indirectly through another Person, without the prior written approval of the Board, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in solicit or participate within attempt to solicit any employee (other than the Market Area in competition with any member Shareholders) of the Company Group in any aspect Transferred Companies or their Affiliates to leave the employ of the BusinessTransferred Companies or their Affiliates, including by directly or indirectly: (Aii) owning, managing, operating, or being hire any person who was an officer or director of, any business that competes with any member employee (other than the Shareholders) of the Company Group Transferred Companies or their Affiliates at any time during the one (1) year period immediately prior to the date on which such hiring would take place (it being conclusively presumed by the parties so as to avoid any disputes under this Section 9.2(b) that any such hiring within such one (1) year period is in the Market Areaviolation of clause (i) above), or (Biii) joiningfor so long as such Seller Group Member has continuing obligations under Section 9.2(a) above, becoming an employee call on, solicit or consultant ofservice any customer, supplier, licensee, licensor or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member other business relation of the Company Group in Transferred Companies or their Affiliates (including any capacity (with respect to this clause (B)) in which Employee’s duties Person that was a customer, Supplier or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member other potential business relation of the Company Group;
Transferred Companies or their Affiliates at any time during the twelve (ii12) appropriate any Business Opportunity ofmonth period immediately prior to such call, solicit or relating toservice) to provide products or services of a Competing Business, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice induce or attempt to induce any customer or supplier of any member of the Company Group such Person to cease or lessen such customer’s or supplier’s reduce their business with any member of the Company Group; or
(iv) solicit, canvass, approach, encourage, entice Transferred Companies or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Grouptheir Affiliates.
(c) Because Each Seller Group Member agrees that it shall not (and shall cause its Affiliates and Subsidiaries not to) make any public derogatory or public disparaging statement or communication regarding Buyer, the Transferred Companies or any of their respective Affiliates or employees. The provisions of this Section 9.2(c): (i) shall not apply to any statements or communications, or any testimony or pleadings, in connection with any dispute, claim, suit, action or arbitration or judicial proceeding against or involving the Seller Group Members, Buyer, Xxxxx, Parent or any of the difficulty Transferred Companies.
(d) If, at the time of measuring economic losses enforcement of the covenants contained in this Section 9.2 (the “Restrictive Covenants”), a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the parties agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed and directed to revise the Company restrictions contained herein to cover the maximum period, scope and area permitted by Law. Each Seller Group as Member has consulted with legal counsel regarding the Restrictive Covenants and based on such consultation has determined and hereby acknowledges that the Restrictive Covenants are reasonable in terms of duration, scope and area restrictions and are necessary to protect the goodwill of the Transferred Companies’ business and the substantial investment in the Transferred Companies made by Buyer hereunder. Each Seller Group Member further acknowledges and agrees that the Restrictive Covenants are being entered into by it in connection with the sale by Seller of the Transferred Membership Interests and the goodwill of the Transferred Companies’ business pursuant to this Agreement and not directly or indirectly in connection with such Seller Group Members’ employment or other relationship with the Transferred Companies. If any Seller Group Member or an Affiliate or Subsidiary of such Seller Group Member breaches, or threatens to commit a result breach of, any of a the Restrictive Covenants, the Transferred Companies shall have the right and remedy to have the Restrictive Covenants specifically enforced by any court of competent jurisdiction through temporary, preliminary and/or permanent injunctive relief, it being agreed that any breach or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and Restrictive Covenants would cause irreparable damage that would be caused injury to the members of the Company Group for which they would have no other adequate remedy, the Company Transferred Companies and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford provide an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equityTransferred Companies.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Samples: Purchase Agreement (Trimas Corp)
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee access to Confidential Information for use only during the Employment Period, and Employee acknowledges and agrees that the Company Group will shall be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill of the Company Group, and in consideration thereof and in consideration of the Company providing Employee with access to Confidential Information and as an express incentive for the Company to enter into this Agreement and employ Employee hereunderEmployee, Employee has voluntarily agreed to the covenants set forth in this Section 109. Employee further agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope all respects and purpose in all respectsnot oppressive, do not interfere with public interests, will shall not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and substantial and legitimate business interests..
(b) During Employee agrees that, during the Prohibited Period, Employee shall not, without the prior written approval of the Board, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in or participate within the Market Area in competition with any member of the Company Group in any aspect of the Business, including by which prohibition shall prevent Employee from directly or indirectly: (A) indirectly owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an officer, director, employee or consultant of, or loaning money to, or selling or leasing equipment or real estate to or otherwise being affiliated with, with any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with the Company Group, including any customer or supplier who was a customer or supplier of any member of the Company GroupGroup during the eighteen (18) month period preceding the Termination Date; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group, including any employee or contractor who was an employee or contractor of any member of the Company Group during the eighteen (18) month period preceding the Termination Date.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 8 and in this Section 109, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity. In addition, Employee acknowledges that money damages would not be a sufficient remedy for any breach of this Section 9 by Employee, and the Company or its Affiliates shall be entitled to enforce the provisions of this Section 9 by terminating payments then owing to Employee under this Agreement.
(d) The covenants in this Section 109, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The For purposes of this Section 9, the following terms shall have the following meanings:
Appears in 1 contract
Samples: Employment Agreement (Daseke, Inc.)
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The You acknowledge that, in the course of your employment with the Company, you have and will continue to become familiar with the Company’s and the Company shall provide Employee access to DocuSign Envelope ID: 4E0DE264-57B1-499F-AFA7-F6AD50F64C1A Affiliates’ trade secrets and with other Confidential Information for use only concerning the Company and the Company Affiliates and that your services will be of special, unique and extraordinary value to the Company and the Company Affiliates. Therefore, you agree that, during the Employment Restriction Period (as defined in Section 9(b) below), and for a period of eighteen (18) months following such Restriction Period, and Employee acknowledges and agrees that you will not (x) anywhere the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill or any of the Company Group, and as an express incentive for Affiliates conducts business or (y) anywhere the Company or any of the Company Affiliates has spent time and resources in connection with expanding its business, directly or indirectly, either on your own behalf or on behalf of any other person, firm or entity:
(i) own, manage, operate, consult with, provide financing to, or join, control or participate in the ownership, management, operation or control of, any business wherever located (whether in corporate, proprietorship or partnership form or otherwise), if such business is engaged in the business of manufacturing, marketing, sale, research or development of pharmaceuticals for cancer utilizing a methodology or mechanism that is similar to enter into methodologies or mechanisms used by the Company (collectively, “Specified Therapies”); provided, however, that this Agreement and employ Employee hereunderSection 9(a)(i) shall not prohibit you from working, Employee has voluntarily agreed after the Restriction Period for an entity that engages in the manufacture, sale, marketing or distribution of pharmaceutical products so long as neither you nor such employer is involved in the manufacturing, marketing, sale or research or development of therapeutics or pharmaceuticals for any of the Specified Therapies; or
(ii) except as permitted by Section 7(e), say anything which is harmful to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts reputation of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interestsor any of the Company Affiliates or which could be reasonably expected to lead any person to cease to deal with the Company or any of the Company Affiliates on substantially equivalent terms to those previously offered or at all.
(b) During the Prohibited For purposes of this letter agreement, “Restriction Period, Employee shall not, without the prior written approval of the Board, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
” means (i) engage in or participate within the Market Area in competition with Employment Period and any member of other period during which you are employed by the Company Group in or any aspect of the Businessits Affiliates, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect whether pursuant to this clause (B)) in which Employee’s duties Agreement or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
otherwise, and (ii) appropriate any Business Opportunity ofa period of six months following your separation from employment, or relating to, any member regardless of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice reason for your separation and whether caused by you or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide For the reasons and consideration specified in Section 8, Employee access to Confidential Information for use only hereby covenants and agrees that, during the Employment Period, and Employee acknowledges and agrees that the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill Term of the Company Group, and as an express incentive for the Company to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.
(b) During the Prohibited PeriodNon-Competition, Employee shall not, without the prior written approval of the Board, directly or indirectly, for Employee individually or on behalf of as an officer, director, manager, employee, stockholder, consultant, contractor, partner, member, joint venturer, agent, equity owner or in conjunction with any other person or entity of any naturecapacity whatsoever:
(i) engage in or participate within the Market Area in competition with any member of the Company Group in any aspect of the Businessown, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, manage, operate, join, control, be employed by, provide Competing Services to, or participate in the ownership, management, operation or control of or provision of Competing Services to, a Competing Business operating in the Geographic Area; provided, however Employee may be employed by an organization, such as a hospital, nursing home or other similar type of healthcare provider, that also operates a Competing Business in the Market Area in competitionGeographic Area, provided that (i) Employee is not employed by and does not provide services directly to the division, subsidiary or anticipated competition, with any member affiliate of such organization that operates a Competing Business and (ii) the Competing Business makes up less than five percent (5%) of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf net revenues of any member of the Company Groupsuch organization;
(ii) appropriate any Business Opportunity ofrecruit, hire, assist in hiring, attempt to hire, or relating tocontact or solicit with respect to hiring any Person who, at any member time during the 12 month period ending on the Date of Termination, was an employee of the Company; provided, that Employee may hire any Person that served as an administrative assistant or clerical employee at the time Employee’s employment with the Company Group located in the Market Areaterminates;
(iii) solicit, canvass, approach, encourage, entice induce or attempt to induce any customer or supplier of any member employee of the Company Group to cease terminate, or lessen such customer’s or supplier’s business with in any member of way interfere with, the relationship between the Company Groupand any employee thereof; or
(iv) solicit, canvass, approach, encourage, entice induce or attempt to induce any employee customer, client, patient, supplier, service provider, or contractor of any member other business relation of the Company Group in the Geographic Area to terminate hiscease doing business with the Company, her or its employment or engagement in any way interfere with the relationship between the Company and any member such Person. Notwithstanding the foregoing, the Company agrees that Employee may own less than one percent of the outstanding voting securities of any publicly traded company that is a Competing Business so long as Employee does not otherwise participate in such competing business in any way prohibited by this Section 10. This Section 10(a) shall not apply in the event Company Groupbreaches any of its obligations under Section 5 or 6.
(b) Employee shall not make any negative or disparaging comments regarding the Company, its Subsidiaries or Affiliates or any of their respective officers, directors, shareholders, partners, members, managers, agents or employees (collectively, the “Representatives”), including regarding the performance of the Company, its Subsidiaries or Affiliates, or otherwise take any action that could reasonably be expected to adversely affect the Company, its Subsidiaries or Affiliates or the personal or professional reputation of any of their respective Representatives. Information required to be disclosed by Employee pursuant to any applicable law, court order, subpoena, process or governmental decree shall not constitute a violation or breach of this Section 10(b); provided, that Employee delivers written notice of such required disclosure to the Company promptly before making such disclosure if such notice is not prohibited by applicable law, court order, subpoena, process or governmental decree.
(c) Because Employee acknowledges that the geographic boundaries, scope of prohibited activities, and time duration of the difficulty preceding paragraphs in this Section 10 (including the defined terms for “Competing Business,” “Geographic Area,” and “Term of measuring economic losses Non-Competition” set forth in Section 1) are reasonable in nature and are no broader than are necessary to maintain the goodwill of the Company Group and the confidentiality of its Confidential Information and to protect the goodwill and other legitimate business interests of the Company, and also that the enforcement of such covenants would not cause Employee any undue hardship or unreasonably interfere with Employee’s ability to earn a livelihood. If Employee violates the covenants and restrictions in this Section 10 and the Company brings legal action for injunctive or other equitable relief, Employee agrees that the Company shall not be deprived of the benefit of the full period of the restrictive covenant, as a result of a breach or threatened breach of the covenants set forth time involved in obtaining such relief. Accordingly, Employee agrees that the provisions in Section 9 and in this 10(a) shall have a duration determined pursuant to Section 1010(a), and because of computed from the immediate and irreparable damage that would be caused to date the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach legal or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equityis granted.
(d) The covenants If any court in any jurisdiction determines that any portion of this Section 1010 (including the defined terms for “Competing Business,” “Geographic Area,” and “Term of Non-Competition” set forth in Section 1) is invalid or unenforceable within such jurisdiction under circumstances then existing, the remainder of this Section 10 (including the defined terms for “Competing Business,” “Geographic Area,” and each provision and portion hereof, are severable and separate, and the unenforceability “Term of any specific covenant (or portion thereofNon-Competition” set forth in Section 1) shall not affect thereby be affected and shall be given full effect without regard to the invalid or unenforceable provisions. If any court in any jurisdiction construes any of the provisions of any other covenant this Section 10 (or portion thereof). Moreover, in including the event any arbitrator or court defined terms for “Competing Business,” “Geographic Area,” and “Term of competent jurisdiction shall determine that the scope, time or territorial restrictions Non-Competition” set forth are unreasonablein Section 1) to be invalid or unenforceable within such jurisdiction under circumstances then existing, then it is the intention because of the parties that duration, scope or geographical area of such provision, such court shall be required to substitute the maximum duration, scope or geographical area reasonable under such circumstances within such jurisdiction for the stated period, scope or area with respect to such jurisdiction and such court shall be allowed to revise the restrictions be enforced contained herein to cover the fullest extent which such arbitrator or court deems reasonablemaximum duration, scope and area permitted by law, and this Agreement shall thereby be reformedto enforce such provision as so revised.
(e) The following As used in this Section 10 (and the defined terms for “Competing Business,” “Geographic Area,” and “Term of Non-Competition” set forth in Section 1), “Company” shall have include the following meanings:Company and any of its Subsidiaries.
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee Executive access to Confidential Information for use only during the Employment Period, and Employee Executive acknowledges and agrees that the Company Group will be entrusting EmployeeExecutive, in Employee’s Executive's unique and special capacity, with developing the goodwill of the Company Group, and in consideration of the Company providing Executive with access to Confidential Information and as an express incentive for the Company to enter into this Agreement and employ Employee Executive hereunder, Employee Executive has voluntarily agreed to the covenants set forth in this Section 108. Employee Executive agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee Executive undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s 's Confidential Information, goodwill and legitimate business interests.
(b) During the Prohibited Period, Employee Executive shall not, without the prior written approval of the Board, directly or indirectly, for Employee Executive or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in or participate within the Market Area in any Business in competition with any member of the Company Group in any aspect of the BusinessGroup, including by which prohibition shall prevent Executive from directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business Business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s Executive's duties or responsibilities responsibilities: (x) are the same as or similar to the duties or responsibilities that Employee Executive had on behalf of any member of the Company Group, or (y) involve direct or indirect oversight of, or responsibility for, duties or responsibilities that are the same or similar to the duties or responsibilities that Executive had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group with whom or which Executive had contact on behalf of any member of the Company Group to cease or lessen such customer’s 's or supplier’s 's business with any member of the Company Group; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group.
(c) Notwithstanding the foregoing, it shall not be a violation of Section 8(b)(i) above for Executive to hold, as a passive investment, up to five percent (5%) of (i) the publicly traded securities of any company, or (ii) the equity or other interests in a privately held entity that engages in the Business so long as, in each instance, Executive does not have the power to direct or control the applicable entity.
(d) Further notwithstanding the foregoing, following the Date of Termination, the above-referenced limitations in Sections 8(b)(i), (ill and (iii) shall not apply in those portions of the Market Area located within the State of Oklahoma. Instead, Employee agrees that, following the Date of Termination, the restrictions on Employee's activities within those portions of the Market Area located within the State of Oklahoma (in addition to those restrictions set forth in Section 6 and Section 8(b)(iv) above) shall be as follows: during that portion of the Prohibited Period that follows the Date of Termination, Employee will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company or any other member of the Company Group.
(e) Executive agrees not to disparage any member of the Company Group or any of such entities’ respective affiliates, officers, directors, employees or shareholders in any manner intended or reasonably likely to be harmful to them, their business, business reputation or personal reputation. Nothing in this Agreement shall preclude Executive from making disclosures permitted by Section 6(e) above, including making truthful statements or disclosures that are required by applicable law, regulation or legal process, or from filing a charge with, reporting possible violations to, or participating or cooperating with the Securities and Exchange Commission or any other federal, state or local regulatory body or law enforcement agency, including in relation to any whistleblower, anti-discrimination, or anti-retaliation provisions of federal, state or local law or regulation.
(f) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 6, Section 7 and in this Section 108, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s 's or any other member of the Company Group’s 's exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(dg) The covenants in this Section 108, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any [arbitrator or or] court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(eh) The following terms shall have the following meanings:
Appears in 1 contract
Samples: Employment Agreement (Ranger Energy Services, Inc.)
Non-Competition; Non-Solicitation; Non-Disparagement. If the Awardee (i) engages in the operation or management of a business (whether as owner, partner, officer, director, employee or otherwise and whether during or after termination of employment) which is in competition with the Corporation or any of its Subsidiaries, (ii) induces or attempts to induce any customer, supplier, licensee or other individual, corporation or other business organization having a business relationship with the Corporation or any of its Subsidiaries to cease doing business with the Corporation or any of its Subsidiaries or in any way interferes with the relationship between any such customer, supplier, licensee or other person and the Corporation or any of its Subsidiaries, (iii) solicits any employee of the Corporation or any of its Subsidiaries to leave the employment thereof or in any way interferes with the relationship of such employee with the Corporation or any of its Subsidiaries, or (iv) makes any statements or comments, orally or in writing, of a defamatory or disparaging nature regarding the Corporation or any of its Subsidiaries (including but not limited to regarding any of their respective businesses, officers, directors, personnel, products or policies), the Committee may (a) The Company shall provide Employee access to Confidential Information for use only during the Employment Period, and Employee acknowledges and agrees that the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill cause all shares of the Company Group, Restricted Stock remaining subject to the employment and as an express incentive for the Company to enter into stock performance restrictions imposed by this Agreement and employ Employee hereunder, Employee has voluntarily agreed to be immediately forfeited to the covenants set forth in this Section 10. Employee agrees Corporation and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere Awardee shall have no further rights with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary respect to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.
such shares and/or (b) During require the Prohibited PeriodAwardee to promptly return and transfer, Employee shall notand thereby forfeit, without ownership to the prior written approval Corporation of all or a portion (at the discretion of the Board, directly Committee) of the number of shares of the Restricted Stock which were issued or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in or participate transferred by the Corporation to the Awardee within the Market Area in competition with three (3) years immediately preceding any member such activity by the Awardee (or, at the discretion of the Company Group Committee, to pay to the Corporation in cash an amount equal to the fair market value of such number of shares of the Class A Common Stock as of the date of the determination by the Committee under this Section 5), provided, however, that this Section 5 shall not apply if a Section 9 Event occurs prior to any such activity by the Awardee. Whether the Awardee has engaged in any aspect of the Business, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group activities referred to in the Market Areaimmediately preceding sentence shall be determined, or (B) joiningin its discretion, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, by the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10Committee, and because of any such determination by the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group Committee shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions final and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equitybinding.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Samples: Restricted Share Agreement (Matthews International Corp)
Non-Competition; Non-Solicitation; Non-Disparagement. (ai) The Company shall provide Employee access to Confidential Information for use only during the Employment Period, and Employee Executive acknowledges and agrees that recognizes the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing highly competitive nature of the goodwill businesses of the Company Groupand its subsidiaries, and accordingly agrees as an express incentive for the Company to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.follows:
(b1) During the Prohibited Employment Term and for a period of two (2) years following the date the Executive ceases to be employed by the Company (together, the “Restricted Period”), Employee shall the Executive will not, without whether on the prior written approval of the Board, directly or indirectly, for Employee Executive’s own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other person business organization, entity or entity enterprise whatsoever (for the purposes of this Section 8, a “Person”), directly or indirectly solicit or assist in soliciting any nature:
(i) engage in or participate within the Market Area in competition with any member business of the Company same type or kind as the Covered Business performed by the Restricted Group in any aspect of the Business, including by directly from or indirectly: with respect to (A) owningclients or customers of the Restricted Group with respect to whom the Executive provided services, managing, operatingeither alone or with others, or being an officer had a business relationship, or director ofon whose account the Executive worked or became familiar, any business or supervised directly or indirectly the servicing activities with respect to that competes with any member client or customer, during the twenty-four (24)-month period prior to the Executive’s Termination Date, and further provided such clients or customers were clients or customers of the Company Restricted Group either on such Termination Date or during the twenty-four (24) months prior thereto, and (B) prospective clients or customers of the Restricted Group which the Executive alone, in combination with others, or in a supervisory capacity, solicited during the Market Areaeighteen (18) months prior to the Executive’s Termination Date. Notwithstanding the foregoing, the provisions of this Section 8(a)(i)(1) shall not be violated by (A) general advertising or solicitation not specifically targeted at Company-related persons or entities, (B) the Executive serving solely as a reference, upon request, for any customer or client of the Restricted Group, or (BC) joining, becoming an employee or consultant of, or otherwise being affiliated with, actions taken by any person or entity with which the Executive is associated if the Executive is not directly or indirectly involved in the matter and has not directly or indirectly identified such Company-related person or entity for soliciting or hiring.
(2) During the Restricted Period, the Executive will not directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant:
a. engage in, or acquire a financial interest in or otherwise become actively involved with any Person engaged in, the Covered Business within any country where the Restricted Group engages, or planning plans to engage inengage, the Business in the Market Area in competition, or anticipated competition, with any member Covered Business as of the Company Group in any capacity (with respect to this clause (B)) in which EmployeeExecutive’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company GroupTermination Date; or
(iv) solicitb. intentionally and adversely interfere with, canvassor intentionally attempt to adversely interfere with, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to business relationships between the members of the Company Restricted Group for which they would have no other adequate remedyand any of their clients, customers, suppliers, partners, members or investors.
(3) Notwithstanding anything to the contrary in this Section 8, the Company and each other Executive may, directly or indirectly own, solely as an investment, securities of any Person engaged in the Covered Business that are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Executive (A) is not a controlling person of, or a member of a group which controls, such person and (B) does not, directly or indirectly, own 2% or more of any class of securities of such Person.
(4) During the Company Restricted Period, the Executive will not, whether on the Executive’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
a. solicit or encourage any employee of the Restricted Group shall be entitled to enforce leave the foregoing covenantsemployment of the Restricted Group;
b. hire any executive-level employee (i.e., in vice president level and above or equivalent title) who was employed by the event Restricted Group as of a breach the Executive’s Termination Date or threatened breachwho left the employment of the Restricted Group coincident with, by injunctions and restraining orders from or within one (1) year prior to, or after, the Executive’s Termination Date, excluding an executive-level employee whose employment with the Restricted Group ceased at least twelve (12) months prior to the date of such hiring; or
c. encourage any court consultant of competent jurisdictionthe Restricted Group to cease working with the Restricted Group. Notwithstanding the foregoing, without the necessity provisions of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief this Section 8(a)(i)(4) shall not be violated by (A) general advertising or solicitation not specifically targeted at Company-related persons or entities, (B) the Company’s or Executive serving solely as a reference, upon request, for any other member employee of the Company Restricted Group’s exclusive remedy , or (C) actions taken by any person or entity with which the Executive is associated if the Executive is not directly or indirectly involved in the matter and has not directly or indirectly identified such Company-related person or entity for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equitysoliciting or hiring.
(d5) The covenants in For purposes of this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meanings8:
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee Each Member hereby acknowledges that such Person is familiar with and has had access to the Company Entities’ trade secrets and other Confidential Information for use only during and has contributed to the Employment Period, and Employee development of goodwill being acquired by Buyer in connection with the transactions contemplated hereby. Each Member acknowledges and agrees that the Company Group will Entities and Buyer would be entrusting Employee, irreparably damaged if such Member were to provide services to or otherwise participate in Employee’s unique the business of any Person competing with the Company Entities in a similar business and special capacity, with developing the goodwill that any such competition by such Member would result in a significant loss of the Company Group, Company’s goodwill being acquired by Buyer in connection with the transactions contemplated hereby. Each Member further acknowledges and as an express incentive for agrees that the Company covenants and agreements set forth in this Section 5.17 were a material inducement to Buyer to enter into this Agreement and employ Employee to perform its obligations hereunder, Employee has voluntarily agreed to and that neither Buyer nor any of its Affiliates would obtain the covenants benefit of the bargain set forth in this Agreement as specifically negotiated by the parties hereto if such Member breached the provisions of this Section 105.17. Employee agrees Therefore, each Member agrees, in further consideration of the amounts to be paid for the Membership Units and the goodwill of the Company Entities, that from the Closing Date until the five (5)-year anniversary of the Closing Date (the “Restricted Period”), such Member shall not (and such Member shall cause his, her or its Affiliates not to), directly or indirectly through one or more of his, her or its Affiliates, another Person or otherwise, engage in, participate in or otherwise assist (whether as an owner, officer, partner, principal, joint venturer, stockholder, director, member, manager, investor, lender, employee, agent, independent contractor, consultant or otherwise) any Competing Business anywhere in the Restricted Territory; provided that nothing herein shall prohibit such Member or any of his, her or its Affiliates from being a passive owner of not more than one percent (1%) of the outstanding stock of any class of a corporation which is publicly traded so long as none of such Persons has any active participation in the business of such corporation; and nothing herein shall prohibit Xxxx Xxxxxx, Xxxx Xxxxxx DDS, MS, Inc., Xxxxxx Family Trust, from owning and operating the business of Orchestrate Orthodontic Technologies, Inc. as currently conducted on the date hereof (including in scope and geography) in the ordinary course of its business, or any of Xxxx Xxxxxx, Xxxx Xxxxxx DDS, MS, Inc., Xxxxxx Family Trust or Orchestrate Orthodontic Technologies, Inc. from the operation of a business that sells 3D printers, or provides orthodontic treatment planning software or services, or software development services in each case, as currently conducted on the date hereof (including in scope and geography) by such party in the ordinary course of business. Each Member acknowledges that the limitations Business has been conducted throughout the Restricted Territory and that the geographic restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, above are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interestsof the Business being sold by such Member pursuant to this Agreement.
(b) During Each Member agrees that during the Prohibited Restricted Period, Employee he, she or it shall not, without the prior written approval of the Board, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
not (i) engage in or participate within the Market Area in competition with any member of the Company Group in any aspect of the Business, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen and such customer’s or supplier’s business with any member of the Company Group; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate Member shall cause his, her or its employment Affiliates not to), directly or engagement with indirectly through one or more of his, her or its Affiliates, another Person or otherwise, (i) induce or attempt to induce any member employee, consultant or independent contractor of the Company GroupEntities to leave the employ or engagement of the Company Entities, or in any way interfere with the relationship between the Company Entities and any employees, consultant or independent contractor thereof, (ii) hire or engage any person who was an employee, consultant or independent contractor of any Company Entity at any time during the twelve (12) month period immediately prior to the date on which such hiring or engagement would take place, or (iii) other than on behalf of the Company Entities, solicit for business of the type conducted by the Company Entities, or provide services of the type provided by the Company Entities to, any customer, manufacturer, supplier, distributor, sales representative, broker, licensee, licensor or other business relation of the Company Entities or any of its or their successors or assigns (including any Person that was a customer, manufacturer, supplier, distributor, sales representative, broker, licensee, licensor or other business relation of the Company Entities or any of its or their successors or assigns at any time during the twelve (12) month period immediately prior to such solicitation or service), or induce or attempt to induce such Person to cease doing business with the Company Entities or any of its or their successors or assigns, or in any way interfere with the relationship between any such customer, manufacturer, supplier, distributor, sales representative, broker, licensee, licensor or other business relation and the Company Entities or any of its or their successors or assigns (including making any negative statements or communications about the Company Entities or any of its or their successors or assigns).
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach Each Member agrees that he, she or threatened breach of the covenants set forth in Section 9 and in this Section 10it shall not, and because of the immediate and irreparable damage such Member shall cause his, her or its Affiliates not to, make any oral or written statement that would be caused to the members of the Company Group for which they would have no other adequate remedydisparages, criticizes or places Buyer, the Company and each other member Entities or any of the Company Group shall be entitled to enforce the foregoing covenantstheir respective Affiliates, or their businesses, their management, officers, directors, employees, agents or their products or services, in the event of a breach or threatened breachnegative light; provided, by injunctions and restraining orders from any court of competent jurisdictionhowever, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be nothing in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformedprohibit any Member from making truthful statements or disclosures to any Governmental Authority, in response to a subpoena or other legal process, in any litigation relating to this Agreement, or as otherwise required or protected by applicable Law.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee access to Confidential Information for use only during the Employment Period, and Employee acknowledges and agrees that the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill of the Company Group, and in consideration of the Company providing Employee with access to Confidential Information, clients and customers and as an express incentive for the Company to enter into this Agreement and employ Employee hereunderEmployee, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests. Employee further agrees that Employee will not challenge the reasonableness or enforceability of any of the covenants set forth in this Section 10 and that Employee will reimburse the Company and any other member of the Company Group for all costs (including reasonable attorneys’ fees) incurred in connection with any action to enforce any of the provisions of this Section 10 if either the Company or such other member of the Company Group prevails on any material issue involved in such dispute or if Employee challenges the reasonableness or enforceability of any of the provisions of this Section 10 (but not the applicability of such provisions) and the Company or another member of the Company Group will reimburse Employee if the Company or another member of the Company Group does not prevail on any material issue involved in such dispute involving this Section 10.
(b) During the Prohibited Period, Employee shall not, without the prior written approval of the Board, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in or participate in (or prepare to engage in or participate in) the Business within the Market Area in competition with any member of the Company Group in any aspect of the BusinessArea, including by which prohibition shall prevent Employee from directly or indirectly: (A) owning, investing in, controlling, managing, operating, participating in, lending Employee’s name to, contributing to, providing assistance to or being an officer or director of, any business that competes with any member of person or entity engaged in or planning to engage in the Company Group Business in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise rendering services for or being affiliated withwith or engaged by, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s customer or client relationships, duties or responsibilities are the same as or similar to the customer or client relationships, duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate or interfere with or attempt to appropriate or interfere with any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer customer, vendor or supplier of any member of the Company Group with whom Employee had contact (including oversight responsibility) or learned Confidential Information about during Employee’s employment with any member of the Company Group to cease or lessen such customer’s, vendor’s or supplier’s business with any member of the Company GroupGroup or otherwise adversely affect such relationship, or attempt to do any of the foregoing; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity. Further, in the event of any violation of the provisions of this Section 10, Employee agrees that the post-termination restrictions contained in this Section 10 will be extended by a period of time equal to the period of such violation, it being the intention of the parties hereto that the running of the Prohibited Period will be tolled during any period of such violation.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Samples: Employment Agreement (Redwire Corp)
Non-Competition; Non-Solicitation; Non-Disparagement. (a) The Company shall provide Employee access to Confidential Information for use only during the Employment Period, and Employee Executive acknowledges and agrees that the Company Group will would be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill of the Company Group, and as an express incentive for the Company irreparably harmed if Executive were to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.
(b) During the Prohibited Period, Employee shall not, without the prior written approval of the Board, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in or participate Competition with the any member of the Company Group within the Market Area in competition restricted time periods and geographical areas set forth herein, (ii) solicit employees, or (iii) otherwise induce any supplier, vendor, licensee, distributor, contractor or other business relation of the any member of the Company Group to cease doing business with, or materially alter its business relationship with any member of the Company Group Group. Executive further acknowledges and agrees that the covenants set forth in Section 10 and in this Section 11 represent reasonable measures to protect the business interests, including the Company Confidential Information, of the Company Group.
(a) In further consideration of the granting of the Company’s undertakings set forth herein, Executive agrees that:
(i) during the period beginning on the Separation Date and ending on the first anniversary of the Separation Date (the “Non-Competition Period”), Executive shall not directly or indirectly engage in, and shall cause any person controlled by Executive not to engage in, Competition. Notwithstanding anything to the contrary contained herein, Executive shall not be prohibited from owning up to one percent of the outstanding equity securities of a person that is engaged in Competition and that is publicly traded on a national securities exchange or in the over the counter market so long as Executive, other than with respect to such ownership, shall not engage in any aspect of activity with such person that otherwise would constitute Competition;
(ii) during the BusinessNon-Competition Period, including by Executive shall not, directly or indirectly, and shall cause any person controlled by Executive not, to: (A) owning, managing, operating, induce or being an officer attempt to induce any employee of the Company or director of, any business that competes with of its Affiliates or any distributor of any member of the Company Group in to leave the Market Area, or employ of such individual’s employer; (B) joininghire or offer to hire any person who is, becoming or within the preceding six-month period was, an employee of or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in or any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf distributor of any member of the Company Group;
; or (iiC) appropriate any Business Opportunity of, induce or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or attempt to induce any customer supplier, vendor, licensee, distributor, employee of any distributor, contractor or supplier other business relation of any member of the Company Group to cease doing business with, or lessen materially alter its business relationship with, such customer’s or supplier’s business with any member of the Company Groupperson; orand
(iviii) at all times following the Separation Date, Executive shall not disparage, or make or solicit, canvassor encourage others to make or solicit, approach, encourage, entice any derogatory or induce any employee negative statement or contractor of communication about any member of the Company Group or any of their respective businesses, products, services or activities; provided, however, that such restriction shall not prohibit or constrain testimony compelled by valid legal process or valid dispute resolution process.
(b) Executive hereby acknowledges and agrees that the enforcement of the provisions of Section 10 and this Section 11 may potentially interfere with Executive’s ability to terminate hispursue a similar livelihood during the periods set forth therein. Executive acknowledges and agrees that the Company entered into this Agreement in reliance on the provisions of Section 10 and this Section 11 and the enforcement of this Agreement is necessary to ensure the preservation, her or protection and continuity of the business, trade secrets and other confidential information and goodwill of the Company and its employment or engagement with Affiliates to the extent and for the periods of time expressly agreed to herein. Executive agrees that, due to the nature of the business of the Company and its Affiliates, the restrictions set forth in this Agreement (including in Section 10 and in this Section 11) are reasonable as to time and scope.
(c) Notwithstanding any provision to the contrary herein, (i) each member of the Company Group may pursue, at its discretion, enforcement of Section 10 and this Section 11 in any court of competent jurisdiction (each a “Court”), and (ii) in no event shall any member of the Company GroupGroup be held liable for Executive’s legal fees or costs in pursuit of such claim, unless there is a final determination by such Court that the applicable member of the Company Group acted in bad faith.
(cd) Because The parties hereto agree that money damages would not be an adequate remedy for any breach of the difficulty of measuring economic losses to the Company Group as a result of a breach Section 10 or threatened this Section 11, and any breach of the covenants set forth in terms of Section 9 and 10 or in this Section 10, 11 would result in irreparable injury and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenantswould have an adequate remedy at law. Therefore, in the event of a breach or a threatened breachbreach of Section 10 or in this Section 11, by injunctions the Company Group, each of their affiliates and restraining orders their respective successors or assigns, in addition to any other rights and remedies existing in their favor at law or in equity, shall be entitled to specific performance or immediate injunctive or other equitable relief from a Court in order to enforce, or prevent any court violations of, the provisions of competent jurisdiction, Section 10 or this Section 11 (without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any a bond or other security), without having to prove damages. The aforementioned equitable relief terms of this Section 11(d) shall not be the Company’s or prevent any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of from pursuing any other covenant (available remedies for any breach or portion thereof). Moreover, in the event any arbitrator or court threatened breach of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformedAgreement.
(e) The following terms shall have For purposes hereof, “Competition” means to directly or indirectly own any interest in, manage, operate, control, invest or acquire an interest in, participate in, consult with, render services for, operate or in any manner engage in any business or enterprise (including any division, group or franchise of a larger organization), whether as a proprietor, owner, member, partner, stockholder, director, officer, employee, consultant, joint venturer, investor, sales representative or other participant, in which any member of the following meanings:Company Group engaged at any time during the two-year period immediately preceding Executive’s action (the “Reference Date”) or engages in or has plans to engage in as a potential new line of business as of the Reference Date, in each case, anywhere in the world.
Appears in 1 contract
Non-Competition; Non-Solicitation; Non-Disparagement. Non-Interference; and Remedies.
(a) The Company shall provide Employee Each Individual Limited Partner acknowledges and agrees, in connection with such Individual Limited Partner’s participation in the Partnership on the terms described in the Prior Partnership Agreement and this amendment and restatement of the terms of the Prior Partnership Agreement or, in the case of an Individual Limited Partner admitted to the Partnership subsequent to the date of the Prior Partnership Agreement, on the terms described herein and in such Individual Limited Partner’s Partner Agreement, if any, that: (i) the alternative asset management business (including, without limitation, for purposes of this paragraph, any hedge or private equity fund management business) is intensely competitive, (ii) such Partner, for the benefit of and on behalf of the Partnership in his capacity as a Partner, has developed, and will continue to develop and have access to and knowledge of, Confidential Information (including, but not limited to, material non-public information of the Och-Ziff Group and its Investors), (iii) the direct or indirect use of any such information for the benefit of, or disclosure of any such information to, any existing or potential competitors of the Och-Ziff Group would place the Och-Ziff Group at a competitive disadvantage and would do damage to the Och-Ziff Group, (iv) such Partner, for the benefit of and on behalf of the Partnership in his capacity as a Partner, has developed relationships with Investors and counterparties through investment by and resources of the Och-Ziff Group, while a Limited Partner of the Partnership, (v) such Partner, for the benefit of and on behalf of the Partnership in his capacity as a Partner, may continue to develop relationships with Investors and counterparties, through investment by and resources of the Och-Ziff Group, while a Limited Partner of the Partnership, (vi) such Partner engaging in any of the activities prohibited by this Section 2.13 would constitute improper appropriation and/or use only during of the Employment PeriodOch-Ziff Group’s Confidential Information and/or Investor and counterparty relationships, (vii) such Partner’s association with the Och-Ziff Group has been critical, and Employee such Partner’s association with the Och-Ziff Group is expected to continue to be critical, to the success of the Och-Ziff Group, (viii) the services to be rendered, and relationships developed, for the benefit of and on behalf of the Partnership in his capacity as a Partner, are of a special and unique character, (ix) the Och-Ziff Group conducts the alternative asset management business throughout the world, (x) the non-competition and other restrictive covenants and agreements set forth in this Agreement are fair and reasonable, and (xi) in light of the foregoing and of such Partner’s education, skills, abilities and financial resources, such Partner acknowledges and agrees that the Company Group such Partner will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill of the Company Groupnot assert, and as an express incentive for the Company to enter into this Agreement and employ Employee hereunderit should not be considered, Employee has voluntarily agreed to that enforcement of any of the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein2.13 would prevent such Partner from earning a living or otherwise are void, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interestsvoidable or unenforceable or should be voided or held unenforceable.
(b) During the Prohibited Restricted Period, Employee shall each Individual Limited Partner will not, without the prior written approval of the Board, directly or indirectly, for Employee either on his own behalf or on behalf of or in conjunction with any other person or entity of any naturePerson:
(i) without the prior written consent of the General Partner, (A) engage or otherwise participate in any manner or fashion in any Competing Business, (B) render any services to any Competing Business, or (C) acquire a financial interest in or become actively involved with any Competing Business (other than as a passive investor holding less than 2% of the issued and outstanding stock of public companies); or
(ii) in any manner solicit or induce any of the Och-Ziff Group’s current or prospective Investors to (A) terminate (or diminish in any material respect) his investments with the Och-Ziff Group for the purpose of associating or doing business with any Competing Business, or otherwise encourage such Investors to terminate (or diminish in any respect) his investments with the Och-Ziff Group for any other reason or (B) invest in or otherwise participate in or support any Competing Business.
(c) During the Restricted Period, each Individual Limited Partner will not, directly or indirectly, either on his own behalf or on behalf of or with any other Person:
(i) in any manner solicit or induce any of the Och-Ziff Group’s current, former or prospective financing sources, capital market intermediaries, consultants, suppliers, partners or other counterparties to terminate (or diminish in any material respect) his relationship with the Och-Ziff Group for the purpose of associating with any Competing Business, or otherwise encourage such financing sources, capital market intermediaries, consultants, suppliers, partners or other counterparties to terminate (or diminish in any respect) his relationship with the Och-Ziff Group for any other reason; or
(ii) in any manner interfere with the Och-Ziff Group’s business relationship with any Investors, financing sources, capital market intermediaries, consultants, suppliers, partners or other counterparties.
(d) During the Restricted Period, each Individual Limited Partner will not, directly or indirectly, either on his own behalf or on behalf of or with any other Person, in any manner solicit any of the owners, members, partners, directors, officers or employees of any member of the Och-Ziff Group to terminate their relationship or employment with the applicable member of the Och-Ziff Group, or hire any such Person (i) who is employed at the time of such solicitation by any member of the Och-Ziff Group, (ii) who is or was once an owner, member, partner, director, officer or employee of any member of the Och-Ziff Group as of the date of Special Withdrawal or Withdrawal of such Partner, or (iii) whose employment or relationship with any such member of the Och-Ziff Group terminated within the Market Area in competition 24-month period prior to the date of Special Withdrawal or Withdrawal of such Partner or thereafter. Additionally, the Partner may not solicit or encourage to cease to work with any member of the Company Och-Ziff Group in any aspect of consultant, agent or adviser that the Business, including by directly Partner knows or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes should know is under contract with any member of the Company Group in Och-Ziff Group.
(e) During the Market AreaRestricted Period and at all times thereafter, each Individual Limited Partner will not, directly or indirectly, make, or (B) joiningcause to be made, becoming an employee any written or consultant oforal statement, observation, or otherwise being affiliated with, any person opinion disparaging the business or entity engaged inreputation of the Och-Ziff Group, or planning to engage inany owners, the Business in the Market Area in competitionpartners, members, directors, officers, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf employees of any member of the Company Och-Ziff Group; provided, however, that nothing contained in this Section 2.13 shall preclude such Partner from providing truthful testimony in response to a valid subpoena, court order, regulatory request, or as may be otherwise required by law, or from participating or cooperating in any action, investigation or proceeding with, or providing truthful information to, any governmental agency, legislative body, self-regulatory organization, or the legal departments of the Och-Ziff Group.
(f) Each Individual Limited Partner acknowledges and agrees that an attempted or threatened breach by such Person of this Section 2.13 would cause irreparable injury to the Partnership and the other members of the Och-Ziff Group not compensable in money damages and the Partnership shall be entitled, in addition to the remedies set forth in Sections 2.13(g) and 2.13(i), to obtain a temporary, preliminary or permanent injunction prohibiting any breaches of this Section 2.13 without being required to prove damages or furnish any bond or other security.
(g) Each Individual Limited Partner agrees that it would be impossible to compute the actual damages resulting from a breach of Section 2.13(b) or, if applicable, any of the non-competition covenants provided in such Partner’s Partner Agreement, and that the amounts set forth in this Section 2.13(g) are reasonable and do not operate as a penalty, but are a genuine pre-estimate of the anticipated loss that the Partnership and other members of the Och-Ziff Group would suffer from a breach of Section 2.13(b) or, if applicable, of any of the non-competition covenants provided in such Partner’s Partner Agreement. In the event an Individual Limited Partner breaches Section 2.13(b) or, if applicable, any of the non-competition covenants provided in such Partner’s Partner Agreement, then:
(i) on or after the date of such breach, any unvested Class A Common Units of such Partner and its Related Trusts, if any, shall cease to vest and thereafter shall be reallocated in accordance with this Section 2.13(g);
(ii) appropriate any Business Opportunity ofon or after the date of such breach, or relating tono allocations shall be made to the respective Capital Accounts of such Partner and its Related Trusts, any member of the Company Group located in the Market Areaif any, and no distributions shall be made to such Partners;
(iii) soliciton or after the date of such breach, canvass, approach, encourage, entice or induce no Transfer (including any customer or supplier exchange pursuant to the Exchange Agreement) of any member of the Company Group Class A Common Units of such Partner or its Related Trusts, if any, shall be permitted under any circumstances notwithstanding anything to cease or lessen such customer’s or supplier’s business with any member of the Company Group; orcontrary in this Agreement;
(iv) soliciton or after the date of such breach, canvassno sale, approachexchange, encourageassignment, entice pledge, hypothecation, bequeath, creation of an encumbrance, or induce any employee other transfer or contractor disposition of any member kind may be made of any of the Company Group to terminate his, her Class A Shares acquired by such Partner or its employment or engagement with any member Related Trusts, if any, through an exchange pursuant to the Exchange Agreement;
(v) as of the Company Groupapplicable Reallocation Date, all of the unvested and vested Class A Common Units of such Partner and its Related Trusts, if any, and all allocations and distributions on such Class A Common Units that would otherwise have been received by such Partners on or after the date of such breach shall be reallocated from such Partners to the Continuing Partners in proportion to the total number of Original Common Units owned by each such Continuing Partner and its Original Related Trusts;
(vi) each of such Partner and its Related Trusts, if any, agrees that, on the Reallocation Date, it shall immediately:
(A) pay to the Continuing Partners, in proportion to the total number of Original Common Units owned by each such Continuing Partner and its Original Related Trusts, a lump-sum cash amount equal to the sum of: (i) the total after-tax proceeds received by such Individual Limited Partner or Related Trust thereof for any Class A Shares acquired at any time pursuant to the Exchange Agreement and that were subsequently transferred during the 24-month period prior to the date of such breach; and (ii) any distributions received by such Individual Limited Partner or Related Trust thereof during such 24-month period on Class A Shares acquired pursuant to the Exchange Agreement;
(B) transfer any Class A Shares that were acquired at any time pursuant to the Exchange Agreement and held by such Individual Limited Partner or Related Trust thereof on and after the date of such breach to the Continuing Partners in proportion to the total number of Original Common Units owned by each such Continuing Partner and its Original Related Trusts; and
(C) pay to the Continuing Partners in proportion to the total number of Original Common Units owned by each such Continuing Partner and its Original Related Trusts a lump-sum cash amount equal to the sum of: (i) the total after-tax proceeds received by such Individual Limited Partner or Related Trust thereof for any Class A Shares acquired at any time pursuant to the Exchange Agreement and that were subsequently transferred on or after the date of such breach; and (ii) all distributions received by such Individual Limited Partner or Related Trust thereof on or after the date of such breach on Class A Shares acquired pursuant to the Exchange Agreement; and
(vii) such Partner and its Related Trusts agrees that he shall receive no payments, if any, that he would have otherwise received under the Tax Receivable Agreement on or after the date of such breach, and shall have no further rights under the Tax Receivable Agreement, Exchange Agreement or Registration Rights Agreement after such date. Any reallocated Class A Common Units received by a Continuing Partner pursuant to this Section 2.13(g) shall be deemed for all purposes of this Agreement to be Class A Common Units of such Continuing Partner and subject to the same vesting requirements, if any, in accordance with Section 8.4 as the transferring Limited Partner had been before his breach of Section 2.13(b) or, if applicable, of the relevant non-competition covenants provided in such Partner’s Partner Agreement. Any Continuing Partner receiving reallocated Class A Common Units pursuant to this Section 2.13(g) shall be permitted to exchange fifty percent (50%) of such number of Class A Common Units (and sell any Class A Shares issued in respect thereof), notwithstanding the transfer restrictions set forth in Section 8.1 in the event that the Exchange Committee (as defined in the Exchange Agreement) determines in its sole discretion that the reallocation is taxable; provided, however, that such exchange of Class A Common Units is made in accordance with the Exchange Agreement.
(ch) Because Notwithstanding anything in Section 2.13(g) to the contrary, the General Partner may elect in its sole and absolute discretion to waive the application of any portion, all or none of the difficulty provisions of measuring economic losses Section 2.13(g) in the case of the breach by any Partner of Section 2.13(b) or, if applicable, of the relevant non-competition covenants provided in such Partner’s Partner Agreement.
(i) Without limiting the right of the Partnership to the Company Group as a result of a breach obtain injunctive relief for any attempted or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants2.13, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meanings:Partner breaches
Appears in 1 contract
Samples: Limited Partnership Agreement
