Non-Competition; Non-Solicitation. (a) In consideration of this Agreement, the Executive agrees that, for the period ending one year after the termination of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent): (i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States; (ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business; (iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or (iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company. (b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business. (c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person. (d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 6 contracts
Samples: Employment Agreement (Triarco Industries Inc), Employment Agreement (Triarco Industries Inc), Employment Agreement (Triarco Industries Inc)
Non-Competition; Non-Solicitation. (a) In consideration of this As an express incentive for the Company to enter into the Restricted Stock Agreement, and in order to protect the Executive Company’s and its Affiliates’ confidential information, goodwill and legitimate business interests, Employee expressly acknowledges and agrees that, for until the period ending one year after the termination of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period")Compliance Expiration Date, the Executive Employee will not, directly or indirectly (whether as a sole proprietorindirectly, partner on Employee’s own behalf or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):on behalf of others:
(ia) conduct within the Restricted Area, engage or engage in or be interested in or associated with any Person which conducts or engages carry on in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ than on behalf of the Company or during its Affiliates); for purposes of this Section 3(a), employee acknowledges that the Nonfollowing constitute non-Competition Period; or
(iv) influence exclusive examples of engaging or attempt to influence carrying on in the Business, in violation of this agreement: rendering advice or services to, or otherwise assisting, any Person other person, association or entity that is engaged in, or planning to engage in, the Business in such a contracting party with manner that Employee performs duties or services that are the same or similar to those duties or services that Employee performed on behalf of the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.and its Affiliates;
(b) The Executive shall neitherwithin the Restricted Area, either on solicit or attempt to solicit the Executive's own account business of any customer or in conjunction client of the Company or its Affiliates with whom or which Employee has had any material business dealings during Employee’s employment by the Company and its Affiliates for the furtherance of, or on behalf of any other Personof, solicit a competitive business or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.competitive activity; and
(c) The restrictive encourage or induce any current or former employee of the Company or any of its Affiliates to leave the employment of the Company or any of its Affiliates or offer employment, retain, hire or assist in the hiring of any such employee by any person, association, or entity not affiliated with the Company or any of its Affiliates; provided, however, that nothing in this subsection (c) shall prohibit Employee from offering employment to any prior employee of the Company or any of its Affiliates who was not employed by the Company or any of its Affiliates at any time in the twelve (12) months prior to the termination of Employee’s employment by the Company. Notwithstanding the foregoing, the provisions hereof of Sections 3(a) and 3(b) above will not apply in that portion of the Restricted Area, if any, located within the State of Oklahoma. Instead, Employee agrees that, within that portion of the Restricted Area that is located within the State of Oklahoma, in addition to the restrictions set forth in Section 3(c) above, Employee shall not prohibit directly or indirectly solicit the Executive sale of goods, services or a combination of goods and services from (ithe established customers of the Company and its Affiliates. In addition, the provisions of Sections 3(a) having an equity interest in and 3(b) above shall not apply following Employee’s termination of employment with the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that Company if such interest termination does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as constitute a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other PersonQualified Retirement.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 5 contracts
Samples: Restricted Stock Agreement (Group 1 Automotive Inc), Restricted Stock Agreement (Group 1 Automotive Inc), Restricted Stock Agreement (Group 1 Automotive Inc)
Non-Competition; Non-Solicitation. (a) In The Executive acknowledges and agrees that the nature of the Confidential Information which the Company commits to provide him during his employment by the Company would make it difficult, if not impossible, for him to perform in a similar capacity for a Competing Business (as defined below) without disclosing or utilizing the Confidential Information. Further, the Executive acknowledges that the Company shall, during the time that the Executive is employed by Company, (a) disclose or entrust to the Executive, and provide the Executive access to, or place the Executive in a position to create or develop, trade secrets or Confidential Information belonging to the Company, (b) place the Executive in a position to develop business goodwill belonging to the Company, and (c) disclose or entrust to the Executive business opportunities to be developed for the Company. Accordingly, in consideration of the foregoing, the Executive agrees that he will not (other than for the benefit of the Company pursuant to this Agreement) directly or indirectly, individually or on behalf of any other person, firm, corporation or other entity (whether as an officer, director, employee, shareholder, consultant, contractor, partner, joint venturer, agent, equity owner or in any capacity whatsoever) (1) during the term of Non-Competition (as defined below), carry on or engage in the business of developing and/or implementing drilling and completion techniques to oil-prone resources in previously discovered yet underdeveloped hydrocarbon trends or in any other business activity that the Company is conducting, or is intending to conduct, on the Date of Termination, in each case in the parishes within the State of Louisiana listed in Exhibit A to this Agreement, the Executive agrees thatState of Texas, for and any other geographical area in which the period ending one year after the termination Company conducts business and, as of the Date of Termination, was planning to conduct business and to which the Executive's employment with ’s duties as an employee of the Company related (a “Competing Business”), or (2) during the Term of Non-Solicitation (as defined below), (i) hire, attempt to hire, or contact or solicit with respect to hiring any employee, officer, or consultant of the Company, or (ii) solicit, divert or take away any customers, customer leads, or suppliers (as of the Date of Termination) of the Company. The “Term of Non-Competition” and the “Term of Non-Solicitation” shall be defined as that term beginning on the Effective Date and continuing until (x) if the Executive’s employment is terminated by reason of death or Disability, the Date of Termination, or (y) if the Executive’s employment is terminated by the Company for Cause or without Cause, or by the Executive for Good Reason or without Good Reason (the "Non-Competition Period")Reason, the Executive will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in date that is the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ one year anniversary of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the CompanyDate of Termination.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 5 contracts
Samples: Executive Employment Agreement (Midstates Petroleum Company, Inc.), Executive Employment Agreement (Midstates Petroleum Company, Inc.), Executive Employment Agreement (Midstates Petroleum Company, Inc.)
Non-Competition; Non-Solicitation. (a) In consideration of this Agreement, For the Executive agrees that, for the period ending one year after the termination duration of the Executive's employment with Employment Period and, unless the Company by terminates the Company for Cause or by Executive’s employment without Cause, during the Executive without Good Reason Severance Period (the "“Non-Competition compete Period"”), the Executive will shall not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to except as specifically provided in Section 2(c), engage or invest in, own, manage, operate, finance, guarantee control or provide participate in the ownership, management, operation, financing, or control of, be employed by, associated with, or in any manner connected with, lend any credit to, or render services or advice to, any business, firm, corporation, partnership, association, joint venture or other entity that engages or conducts any business the same as or substantially similar to the Business or any other material assistance business engaged in or proposed to be engaged in or conducted by the Company and/or any Person of its Affiliates during the Employment Period, or then included in the future strategic plan of the Company and/or any of its Affiliates, anywhere within the states or other jurisdictions in which the Company or any of its Affiliates at that time is operating; provided, however, that the Executive may own less than 5% in the aggregate of the outstanding shares of any class of securities of any enterprise (but without otherwise participating in the activities of such enterprise) including those engaged in the Triarco Business;
(iii) solicitmining business, contact or accept business of other than any client or counterparty whom such enterprise with which the Company served competes or conducted business with is currently engaged in a joint venture, if such securities are listed on any national or whose name became known regional securities exchange or have been registered under Section 12(b) or (g) of the Exchange Act. Notwithstanding the foregoing, if the Executive shall present to the Executive as a potential client or counterparty while in Board any opportunity within the employ scope of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with prohibited activities described above, and the Company at any time during shall not elect to pursue such opportunity within a reasonable time, then the Non-Competition Period Executive shall be permitted to terminate any written or oral agreement with pursue such opportunity, subject to the Companyrequirements of Section 2(b).
(b) The During the Employment Period and for a period of twelve (12) months following termination of the Executive’s employment with the Company, the Executive shall neithernot:
(i) persuade, either on solicit or hire, or attempt to recruit, persuade, solicit or hire, any employee, or independent contractor of, or consultant to, the Executive's own account Company, or its Affiliates, to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement; or
(ii) attempt in conjunction any manner to solicit or accept from any customer or client of the Company or any of its Affiliates, with whom the Company or any of its Affiliates had significant contact during the term of the Agreement, business of the kind or competitive with the business done by the Company or any of its Affiliates with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or is reasonably expected to do with the Company or any of its Affiliates or if any such customer elects to move its business to a person other than the Company or any of its Affiliates, provide any services (of the kind or competitive with the Business of the Company or any of its Affiliates) for such customer, or have any discussions regarding any such service with such customer, on behalf of any such other Person, solicit or entice away from person. The Executive recognizes and agrees that because a violation by the Executive of his obligations under this Section 7 will cause irreparable harm to the Company any officerthat would be difficult to quantify and for which money damages would be inadequate, employee or customer of the Company during shall have the term hereof right to injunctive relief to prevent or restrain any such violation, without the necessity of posting a bond. The Non-Competition compete Period nor engage, hire, employ, or induce will be extended by the employment duration of any such Person whether or not such officer, employee or customer would commit a breach of contract violation by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) his obligations under this Section 7. The Executive expressly agrees that the covenants contained in this Section 10 character, duration and scope of the covenant not to compete are reasonable covenants under in light of the circumstancescircumstances as they exist at the date upon which this Agreement has been executed. However, and further agrees that if in the opinion of should a determination nonetheless be made by a court of competent jurisdictionjurisdiction at a later date that the character, duration or geographical scope of the covenant not to compete is unreasonable in light of the circumstances as they then exist, then it is the intention of the Executive, on the one hand, and the Company, on the other, that the covenant not to compete shall be construed by the court in such restraint is not a manner as to impose only those restrictions on the conduct of the Executive which are reasonable in any respect, such court shall have light of the right, power circumstances as they then exist and authority necessary to excise or modify such provision or provisions assure the Company of these covenants which as the intended benefit of the covenant not to such court shall appear not reasonable and to enforce the remainder thereof as so amendedcompete.
Appears in 5 contracts
Samples: Employment Services Agreement (Symbid Corp.), Employment Services Agreement (Symbid Corp.), Employment Services Agreement (Symbid Corp.)
Non-Competition; Non-Solicitation. (a) In consideration The Executive acknowledges (i) that in the course of this Agreement, the Executive agrees that, for the period ending one year after the termination of the Executive's his employment with the Company by he has and will become familiar with trade secrets and customer lists of, and other confidential information concerning, the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period")and its Affiliates, the Executive will notcustomers, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
and clients and (ii) take any actionthat his services will be of special, directly or indirectly, unique and extraordinary value to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neitheragrees that, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or Employment Term and for a period of one year following his termination of employment for any reason (the “Non-Competition Period nor engagePeriod”), hirehe shall not in any manner, employdirectly or indirectly, through any person, firm, corporation or enterprise, alone or as a member of a partnership or as an officer, director, stockholder, investor or employee of or advisor or consultant to any person, firm, corporation or enterprise or otherwise, engage or be engaged, or induce assist any other person, firm, corporation or enterprise in engaging or being engaged (collectively, the employment “Restricted Activity”), in any Competitive Activity (as defined below). For the purposes of this Section 13, a “Competitive Activity” shall mean unless otherwise determined by the Board a business that (i) is being conducted by the Company or any Affiliate at the time in question and (ii) was being conducted, or was under active consideration to be conducted, by the Company or any Affiliate, at the date of the termination of the Executive’s employment. It is agreed and understood that the prohibitions provided for in this Section 13(b) shall not restrict the Executive from engaging in Restricted Activity for any subsidiary, division or Affiliate or unit of a company (collectively a “Related Entity”) if that Related Entity is not engaged in a Competitive Activity, irrespective of whether some other Related Entity of that company engages in what would otherwise be considered to be a Competitive Activity (as long as Executive does not engage in Restricted Activity for such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring businessother Related Entity).
(c) The restrictive provisions hereof Executive further agrees that during the Non-Competition Period he shall not prohibit the Executive from (i) having an equity interest in any manner, directly or indirectly, hire or cause to be hired any employee of or advisor or consultant to the securities of any entity engaged in the Triarco Business Company or any business with respect to which the Executive obtained confidential of its Affiliates for any purpose or proprietary data in any capacity whatsoever, or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed connection with any business to which Section 13(b) applies, call on, service, solicit or traded, so long as such interest does not exceed 5% otherwise do business with any customer of the outstanding equity interests Company or any of such entity its Affiliates; provided, however, that the restriction contained in clause (ii) of this Section 13(c) shall not apply to, or (iii) with interfere with, the prior written consent proper performance by the Executive of the Company, serving as a director or other advisor to any other Personhis duties and responsibilities under Section 3 of this Agreement.
(d) The Executive agrees that the covenants contained Nothing in this Section 10 are reasonable covenants under 13 shall prohibit the circumstancesExecutive from being a passive owner of not more than two percent (2%) of the outstanding common stock, capital stock and further agrees that if equity of any firm, corporation or enterprise so long as the Executive has no active participation in the opinion management of business of such firm, corporation or enterprise.
(e) If the restrictions stated herein are found by a court of competent jurisdictionto be unreasonable, the parties hereto agree that the maximum period, scope or geographical area reasonable under such restraint is not reasonable in any respectcircumstances shall be substituted for the stated period, such scope or area and that the court shall have revise the rightrestrictions contained herein to cover the maximum period, power scope and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amendedarea permitted by law.
Appears in 4 contracts
Samples: Employment Agreement (Viasys Healthcare Inc), Employment Agreement (Viasys Healthcare Inc), Employment Agreement (Viasys Healthcare Inc)
Non-Competition; Non-Solicitation. (ai) In consideration The Executive agrees that (A) during the term of this Agreementhis employment with the Company and, (B) during the 18-month period following the termination of his employment with the Company for any reason (the “Non-Competition Period”) within the Restricted Territory, the Executive agrees thatshall not, directly or indirectly, engage or participate in, prepare or set up, assist or have any interest in any person, partnership, corporation, firm, association or other business organization, entity or enterprise, whether as an officer, employee, director, partner, stockholder, consultant or otherwise, that engages in the Company’s Business. Notwithstanding the foregoing, (x) the Executive shall not be precluded from purchasing or owning, directly or beneficially, as a passive investment, two percent (2%) or less of any class of publicly traded securities if he does not actively participate in or control, directly or indirectly, any investment or other decisions with respect to such entity, and (y) if the Board terminates the Executive’s employment following the end of the Employment Period (for any reason other than a reason that would have constituted a Termination For Cause had such termination of employment occurred during the Employment Period), then solely for purposes of this subparagraph 7(b)(i), the “Non-Competition Period” shall be the 3-month period ending one year after the following such termination of the Executive's employment with ’s employment.
(ii) During the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will shall not, directly or indirectly indirectly:
(whether as A) offer to hire, divert, entice away, solicit or in any other manner persuade, or attempt to do any of the foregoing (each, a sole proprietor“Solicitation”), partner or venturer, stockholder, director, for any person who is an officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ board member of the Company or during any Company Managed Fund to accept employment or an engagement with a third party or engage in a Solicitation with respect to any person or entity who is, or was, at any time within six months prior to the Non-Competition PeriodSolicitation, an officer, employee, agent or consultant of the Company or any Company Managed Fund to work for a third party engaged in the Company’s Business or to engage in any of the activities hereby prohibited with respect to the Executive under this subparagraph 7(b)(ii);
(B) solicit, divert, entice away or in any other manner persuade, or attempt to do any of the foregoing, on (1) any actual or prospective customer of or investor in the Company or any Company Managed Fund to become a customer of or investor in any third party engaged in the Company’s Business or (2) any customer or investor to cease doing business with the Company or any Company Managed Fund; or
(ivC) influence make any statements or attempt perform any acts intended to influence advance the interest of any Person person engaged in or proposing to engage in the Company’s Business in any way that is a contracting party with intended to injure the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer interests of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other PersonCompany Managed Fund.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 4 contracts
Samples: Employment Agreement (AGNC Investment Corp.), Employment Agreement (AGNC Investment Corp.), Employment Agreement (AGNC Investment Corp.)
Non-Competition; Non-Solicitation. (a) In consideration of this Agreement, During the Term the Executive agrees that, for the period ending one year after the termination of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will shall not, directly or indirectly indirectly:
(a) whether as a sole proprietoran officer, partner or venturerdirector, employee, stockholder, directorpartner, officerproprietor, employeeassociate, consultant representative, consultant, contractor, or in any other capacity as principal whatsoever engage in, become financially interested in, be employed by or agent or through have any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated business connection with any Person which conducts other person, corporation, firm, partnership or engages other entity whatsoever that competes with the Company or its Affiliates, anywhere in the Triarco Business within the United States;, Europe, South America and Asia, in any line of business engaged in (or planned to be engaged in) by the Company or its Affiliates, however, that such restriction shall not apply to Executive’s ownership of any passive investment representing an interest of less than five percent (5%) of an outstanding class of publicly traded securities; or
(iib) take recruit, encourage or solicit any action, directly person who is an Executive or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ contractor of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party entity affiliated with the Company (each, an “Affiliated Entity”) to leave the Company’s or Affiliated Entity’s employ or service for any reason, or interfere in any material manner with employment or service relationships at the time existing between the Company or Affiliated Entity and the subject Executive or contractor (except as may be required in any bona fide termination decision during the Term regarding any Company or Affiliated Entity Executive) in order to induce such Executive or contractor of the Company or any Affiliated Entity to accept other employment or a consulting agreement with any other person or entity. Executive acknowledges that the services that he shall provide to the Company under this Agreement are unique and that irreparable harm shall be suffered by the Company in the event of the breach by Executive of any of his obligations under this Section 4, and that the Company shall be entitled, in addition to its other rights and remedies, whether legal or equitable, to enforce such obligations by an injunction or decree of specific performance. If any restriction set forth in this non-competition section is found by a court to be unreasonable, then Executive agrees, and hereby submits, to the reduction and limitation of such prohibition to such area or period as shall be deemed reasonable by such court. In addition, if Executive breaches this Section 4 at any time during after the Non-Competition Period to terminate any written or oral agreement with Term, the Company.
’s obligation to continue to make payments to Executive pursuant to Sections 8(a) or (b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring businesscease immediately.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 4 contracts
Samples: Employment Agreement (Toughbuilt Industries, Inc), Employment Agreement (Toughbuilt Industries, Inc), Employment Agreement (Toughbuilt Industries, Inc)
Non-Competition; Non-Solicitation. (a) In consideration of this Agreement, For the Executive agrees that, for the period ending one year after the termination duration of the Executive's employment with Employment Period and, unless the Company by terminates the Company for Cause or by Executive’s employment without Cause, during the Executive without Good Reason Severance Period (the "“Non-Competition compete Period"”), the Executive will shall not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to except as specifically provided in the last sentence of Section 2(b), engage or invest in, own, manage, operate, finance, guarantee control or provide participate in the ownership, management, operation, financing, or control of, be employed by, associated with, or in any manner connected with, lend any credit to, or render services or advice to, any business, firm, corporation, partnership, association, joint venture or other entity that engages or conducts any business the same as or substantially similar to the Business or any other material assistance business engaged in or proposed to be engaged in or conducted by the Company and/or any Person of its Affiliates during the Employment Period, or then included in the future strategic plan of the Company and/or any of its Affiliates, anywhere within the states in which the Company or any of its Affiliates at that time is operating; provided, however, that the Executive may own less than 5% in the aggregate of the outstanding shares of any class of securities of any enterprise (but without otherwise participating in the activities of such enterprise) including those engaged in the Triarco Business;
(iii) solicitmining business, contact or accept business of other than any client or counterparty whom such enterprise with which the Company served competes or conducted business with is currently engaged in a joint venture, if such securities are listed on any national or whose name became known regional securities exchange or have been registered under Section 12(b) or (g) of the Exchange Act. Notwithstanding the foregoing, if the Executive shall present to the Executive as a potential client or counterparty while in Board any opportunity within the employ scope of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with prohibited activities described above, and the Company at any time during shall not elect to pursue such opportunity within a reasonable time, then the Non-Competition Period Executive shall be permitted to terminate any written or oral agreement with pursue such opportunity, subject to the Companyrequirements of Section 2(b).
(b) The During the Employment Period and for a period of twelve (12) months following termination of the Executive’s employment with the Company, the Executive shall neithernot:
(i) persuade, either on solicit or hire, or attempt to recruit, persuade, solicit or hire, any employee, or independent contractor of, or consultant to, the Executive's own account Company, or its Affiliates, to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement; or
(ii) attempt in conjunction any manner to solicit or accept from any customer or client of the Company or any of its Affiliates, with whom the Company or any of its Affiliates had significant contact during the term of the Agreement, business of the kind or competitive with the business done by the Company or any of its Affiliates with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or is reasonably expected to do with the Company or any of its Affiliates or if any such customer elects to move its business to a person other than the Company or any of its Affiliates, provide any services (of the kind or competitive with the Business of the Company or any of its Affiliates) for such customer, or have any discussions regarding any such service with such customer, on behalf of any such other Person, solicit or entice away from person. The Executive recognizes and agrees that because a violation by the Executive of his obligations under this Section 7 will cause irreparable harm to the Company any officerthat would be difficult to quantify and for which money damages would be inadequate, employee or customer of the Company during shall have the term hereof right to injunctive relief to prevent or restrain any such violation, without the necessity of posting a bond. The Non-Competition compete Period nor engage, hire, employ, or induce will be extended by the employment duration of any such Person whether or not such officer, employee or customer would commit a breach of contract violation by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) his obligations under this Section 7. The Executive expressly agrees that the covenants contained in this Section 10 character, duration and scope of the covenant not to compete are reasonable covenants under in light of the circumstancescircumstances as they exist at the date upon which this Agreement has been executed. However, and further agrees that if in the opinion of should a determination nonetheless be made by a court of competent jurisdictionjurisdiction at a later date that the character, duration or geographical scope of the covenant not to compete is unreasonable in light of the circumstances as they then exist, then it is the intention of the Executive, on the one hand, and the Company, on the other, that the covenant not to compete shall be construed by the court in such restraint is not a manner as to impose only those restrictions on the conduct of the Executive which are reasonable in any respect, such court shall have light of the right, power circumstances as they then exist and authority necessary to excise or modify such provision or provisions assure the Company of these covenants which as the intended benefit of the covenant not to such court shall appear not reasonable and to enforce the remainder thereof as so amendedcompete.
Appears in 4 contracts
Samples: Employment Services Agreement (Lifeapps Brands Inc.), Employment Services Agreement (Lifeapps Digital Media Inc.), Employment Services Agreement (Dynastar Holdings, Inc.)
Non-Competition; Non-Solicitation. (a) In consideration of this Agreement, You hereby agree that while you are employed by the Executive agrees that, for Company and during the 12-month period ending one year after the following any termination of your employment, regardless of how or why such employment ends, you shall not, directly or indirectly, (i) employ, solicit or retain, induce or encourage any other person or entity to employ or retain, any person who is, or who at any time in the Executive's 12-month period prior to such time had been, employed or retained by the Company or any of its subsidiaries or Affiliates, or solicit, induce or encourage any such person to leave employment with the Company or its Affiliates, (ii) solicit any person or entity that is, or that at any time in the 12-month period prior to such time had been, a customer or client or prospective customer or client of the Company or its Affiliates or encourage any such person or entity to cease being a customer or client of the Company or its Affiliates. You hereby agree that while you are employed by the Company for Cause and during (x) the 12-month period following any termination of your employment, if you are, or by the Executive without Good Reason (the "Non-Competition Period")report directly to, the Company’s Chief Executive will Officer on the Grant Date, or (y) the six-month period following any termination of your employment, for all other Award recipients, in each case, regardless of how or why such employment ends, you shall not, directly or indirectly (indirectly, provide services, whether as a sole proprietorprincipal, partner or venturer, stockholderagent, director, officer, employee, consultant consultant, advisor, shareholder, partner, member or otherwise, alone or in association with any other capacity person, corporation, partnership, limited liability company, sole proprietorship or unincorporated business or any non-U.S. business entity (whether or not for profit) (any such entity, a “Business”), to any Competing Business (as principal or agent or through defined below) in any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages geographic area in the Triarco world in which the Company or any of its Affiliates is engaged in business. For purposes of this Appendix B, the term “Competing Business” shall mean any Business within engaged in the United States;
Business Area. For purposes of this Appendix B, the term “Business Area” shall mean developing, manufacturing, sourcing or supplying firearms, tactical gear, sporting accessories, shooting accessories, recreational accessories, outdoor products or small-caliber ammunition, but in each case, only with respect to products that are the same as or similar to products developed, manufactured, sourced or supplied while you are employed by the Company or any of its subsidiaries or Affiliates or any other Contemplated Business, whether directly to or to wholesale customers for resale to, the local or federal law enforcement, U.S. Government (iiincluding the U.S. Department of Defense), foreign government or consumer markets. For purposes of this Appendix B, the term “Contemplated Business” shall mean any Business with which the Company or any of its subsidiaries or Affiliates engaged in substantive discussions or entered into any contract, agreement, agreement in principle, arrangement or other similar document (including, for the avoidance of doubt, any nondisclosure or confidentiality agreement), in each case, while you are employed by the Company and with respect to a merger, joint venture, acquisition or other similar extraordinary corporate transaction between the Company or any of its subsidiaries or Affiliates on the one hand and such Business or any of its subsidiaries or Affiliates on the other hand; provided that any such merger, joint venture, acquisition or other similar extraordinary corporate transaction is consummated no later than six months following the termination of your employment. Notwithstanding the foregoing, the restrictions of this Appendix B(a) take any actionshall not apply to the placement of general advertisements or the use of general search firm services with respect to a particular geographic area, but which are not targeted, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ towards employees of the Company or during any of its subsidiaries. Nothing in this Appendix B shall be construed as denying you the Non-Competition Period; or
(iv) influence or attempt right to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are corporation listed on a nationally-recognized national securities exchange or quotation system or traded in the over-the-counter market, an amount up to the extent that such interest does not exceed 5% of the outstanding equity interests number of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Personsecurities.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 4 contracts
Samples: Restricted Stock Unit Award Agreement (Vista Outdoor Inc.), Restricted Stock Award Agreement (Vista Outdoor Inc.), Non Qualified Stock Option Award Agreement (Vista Outdoor Inc.)
Non-Competition; Non-Solicitation. (a) In consideration You acknowledge and agree that your use of Confidential Information and our lists of, and information concerning, customers and prospective customers in the conduct of business on behalf of a competitor of the Company would constitute unfair competition with the Company and would adversely affect the business goodwill of the Company. Accordingly, as a material inducement to the Company to enter into this Agreement; to protect the Company's Confidential Information, including lists of, and information concerning, customers and prospective customers of the Company, that may be disclosed or entrusted to you (the disclosure of which by you in violation of this AgreementAgreement would adversely affect the business goodwill of the Company), the Executive agrees thatbusiness goodwill of the Company that may be developed in you and the business opportunities that may be disclosed or entrusted to you by the Company; in consideration for the compensation and other benefits payable hereunder to you, for the period ending one year after the termination benefits to you of having access to Confidential Information, including lists of, and information concerning, customers and prospective customers of the Executive's employment with Company, during the Company by the Company for Cause or by the Executive without Good Reason Employment Period (the "disclosure of which by you in violation of this Agreement would adversely affect the business goodwill of the Company); and for other good and valuable consideration, you hereby covenant and agree that, during the Term of Non-Competition Period")Competition, the Executive you will not, not directly or indirectly (whether indirectly, individually or as a sole proprietor, partner or venturer, stockholderan officer, director, officermanager, employee, consultant shareholder, consultant, contractor, partner, member, joint venturer, agent, equity owner or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):whatsoever:
(i) conduct own, engage in, manage, operate, join, control, be employed by, provide Competing Services to, or engage in or be interested in or associated with any Person which conducts or engages participate in the Triarco ownership, management, operation or control of or provision of Competing Services to, a Competing Business within operating in the United StatesGeographic Area;
(ii) take recruit, hire, assist in hiring, attempt to hire, or contact or solicit with respect to hiring any actionperson who, directly at any time during the twelve (12) month period ending on the date of termination, was an employee of the Company; provided, that you may hire any person that served as an administrative or indirectlyclerical employee at the time their employment with the Company terminates so long as you do not recruit, to finance, guarantee contact or provide any other material assistance to any Person engaged in the Triarco Businesssolicit such employee;
(iii) solicit, contact induce or accept business of attempt to induce any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ employee of the Company to terminate, or during in any way interfere with, the Non-Competition Periodrelationship between the Company and any employee thereof; or
(iv) influence induce or attempt to influence induce any Person customer, client, supplier, service provider, or other business relation of the Company in the Geographic Area to cease doing business with the Company, or in any way interfere with the relationship between the Company and any such person. Notwithstanding the foregoing, the Company agrees that you may own less than one percent of the outstanding voting securities of any publicly traded company that is a contracting party with the Company at Competing Business so long as you do not otherwise participate in such competing business in any time during the Non-Competition Period to terminate any written or oral agreement with the Companyway prohibited by this Section.
(b) The Executive shall neitherYou acknowledge that the geographic boundaries, either on scope of prohibited activities, and time duration of the Executive's own account or preceding paragraphs in conjunction with or on behalf of any other Person, solicit or entice away from this Section are reasonable in nature and are no broader than are necessary to maintain the Company any officer, employee or customer goodwill of the Company during and the term hereof 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 you any undue hardship or unreasonably interfere with your ability to earn a livelihood. If you violate the Non-Competition Period nor engagecovenants and restrictions in this Section and the Company brings legal action for injunctive or other equitable relief, hireyou agree that the Company will not be deprived of the benefit of the full period of the restrictive covenant, employas a result of the time involved in obtaining such relief. Accordingly, you agree that the provisions in this Section will have a duration determined pursuant to Subsection (a) above, computed from the date the legal or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring businessequitable relief is granted.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) The Executive agrees that the covenants contained As used in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.Agreement:
Appears in 4 contracts
Samples: Employment Agreement (Trammell Crow Co), Employment Agreement (Trammell Crow Co), Employment Agreement (Trammell Crow Co)
Non-Competition; Non-Solicitation. (a) In consideration of this Agreement, Employee acknowledges and recognizes the Executive agrees that, for the period ending one year after the termination highly competitive nature of the Executive's employment with business of Alion and Alion’s subsidiaries and accordingly agree as follows:
A. During the Company by Term and the Company for Cause or by the Executive without Good Reason Restricted Period (the "Non-Competition Period"as defined in Section 12.G), the Executive Employee will notnot knowingly (after due inquiry), whether on Employee’s own behalf or on behalf of or in conjunction with any person, company, business entity or other organization whatsoever, directly or indirectly (whether as a sole proprietorsolicit or assist in soliciting in competition with Alion, partner the business of any customer or venturerprospective customer of Alion of which Employee is aware at the time of such termination.
B. During the Restricted Period, stockholder, director, officer, employee, consultant Employee will not directly or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
indirectly: (i) conduct or engage in any services either individually or be interested in or associated on behalf of any person that compete with any Person material business of Alion or Alion’s subsidiaries as conducted at the time Employee ceases to be employed by Alion (including, without limitation, businesses which conducts Alion or engages Alion’s subsidiaries had at such time specific plans to conduct in the Triarco Business within future and as to which plans Employee is aware at the time Employee ceases to be employed by Alion) in the United States;
States (a “Competitive Business”); (ii) take acquire a financial interest in, or otherwise become actively involved with, any actionCompetitive Business, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant, except to financethe extent that such financial interest is a component of compensation or benefits payable pursuant to subsequent employment not otherwise prohibited by this Agreement; or (iii) interfere with, guarantee or provide attempt to interfere with, business relationships formed at or prior to the time Employee ceases to be employed by Alion between Alion or any other material assistance of Alion’s subsidiaries and customers, clients, suppliers of Alion or Alion’s subsidiaries, as to which Employee is aware at the time he ceases to be employed by Alion.
C. Notwithstanding anything to the contrary in this Agreement, Employee may, directly or indirectly own, solely as an investment, securities of any Person person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client Alion or counterparty whom the Company served Alion’s subsidiaries which are publicly traded on a national or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with regional stock exchange or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, or for which such person is required to file annual and quarterly reports with the extent that U.S. Securities and Exchange Commission in accordance with the Securities Exchange Act of 1934, as amended, if Employee (i) is not a controlling person of, or a member of a group which controls, such interest does not exceed 5% of the outstanding equity interests of such entity, person and (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed does not, directly or tradedindirectly, so long as such interest does not exceed own 5% or more of any class of securities of such person.
D. During the Restricted Period, Employee will not, whether on Employee’s own behalf or on behalf of or in conjunction with any person, company, business entity or other organization whatsoever, directly or indirectly: (i) solicit or encourage any employee of Alion or any of Alion’s affiliates to leave the employment of Alion or such affiliate, provided that such employee was employed (or had an offer of employment) with Alion at the time Employee ceases to be employed by Alion; (ii) without Alion’s written permission, hire any such employee who was employed by Alion or Alion’s affiliates as of the outstanding equity interests effective date of such entity Employee’s termination of employment with Alion or who left employment with Alion or Alion’s affiliates coincident with, or within three (3) months prior to or after, the termination of Employee’s employment with Alion; or (iii) encourage to cease to work with the prior written consent of the Company, serving as a director Alion or other advisor to Alion’s affiliates any other Personconsultant then under contract with Alion or Alion’s affiliates.
(d) The Executive agrees E. It is expressly understood and agreed that although Employee and Alion consider the covenants restrictions contained in this Section 10 are reasonable covenants under the circumstances12.E to be reasonable, and further agrees that if in the opinion of a final judicial determination is made by a court of competent jurisdictionjurisdiction that the time or territory or any other restriction contained in this letter agreement is an unenforceable restriction against you, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which this Agreement will not be rendered void but will be deemed amended to apply as to such court shall appear not reasonable maximum time and territory and to enforce such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this letter agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding will not affect the remainder thereof as so amendedenforceability of any of the other restrictions contained herein.
F. Throughout the Restricted Period, the Company shall continue to furnish to Employee the pre-selected health, dental, vision, disability and life insurance coverage through the Company’s insured welfare benefit plans and policies, and shall pay the employer’s contribution for such coverages.
Appears in 4 contracts
Samples: Employment Agreement (Alion Science & Technology Corp), Employment Agreement (Alion Science & Technology Corp), Employment Agreement (Alion Science & Technology Corp)
Non-Competition; Non-Solicitation. (ai) In consideration of this AgreementDuring the Restricted Period, the Executive agrees that, for the period ending one year after the termination of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will shall not, directly or indirectly indirectly: (whether A) solicit, service, or assist any other individual, person, firm, or other entity in soliciting or servicing, any Customer for the purpose of providing and/or selling any products that are provided and/or sold by any member of the Company Group, or performing any services that are performed by any member of the Company Group, or performing any services or providing and/or selling any products that any member of the Company Group proposed to initiate performing, selling or providing during the twelve (12)-month period immediately preceding the Termination Date, based on active discussions with the Board that occurred during such twelve (12)-month period, as evidenced by existing memoranda, Board minutes or other written correspondence, and only to the extent the Company Group was capable of pursuing such proposals as a business and financial matter; (B) interfere with or damage any relationship and/or agreement between any member of the Company Group and any Customer; or (C) associate (including, but not limited to, association as a sole proprietor, partner or owner, employer, partner, principal, investor, joint venturer, stockholdershareholder, director, officerassociate, employee, consultant member, consultant, contractor, director or otherwise) with any Competitive Enterprise; provided, however, that the Executive may own, as a passive investor, securities of any such entity that has outstanding publicly traded securities, so long as the Executive’s direct holdings in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages such entity shall not in the Triarco Business within aggregate constitute more than 5% of the United States;voting power of such entity. The Executive acknowledges that this covenant has a unique, very substantial, and immeasurable value to the Company, that the Executive has sufficient assets and skills to provide a livelihood for the Executive while such covenant remains in force, and that, as a result of the foregoing, in the event that the Executive breaches such covenant, monetary damages would be an insufficient remedy for the Company and equitable enforcement of the covenant would be proper.
(ii) take During the Restricted Period, the Executive shall not solicit, entice, persuade, or induce any actionindividual who is employed or engaged by any member of the Company Group (or who was so employed or engaged within six (6) months immediately preceding the Executive’s Termination Date) to terminate or refrain from continuing such employment or engagement or to become employed by or enter into contractual relations with any other individual or entity other than a member of the Company Group, and the Executive shall not hire, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with ’s behalf or on behalf of any other Personperson, solicit or entice away from the Company any officeras an employee, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employconsultant, or induce the employment of otherwise, any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring businessperson.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 4 contracts
Samples: Employment Agreement (Hornbeck Offshore Services Inc /La), Employment Agreement (Hornbeck Offshore Services Inc /La), Employment Agreement (Hornbeck Offshore Services Inc /La)
Non-Competition; Non-Solicitation. (ai) In consideration of this Agreement, the Executive agrees that, for During the period beginning on the Effective Date and ending one year after 12 months following the termination of date on which the Executive's ’s employment with the Company is terminated for any reason (the “Non-Compete Period”), the Executive covenants and agrees not to, and shall cause his affiliates not to, directly or indirectly anywhere in the world, conduct, manage, operate, engage in or have an ownership interest in any business or enterprise that (A) manufactures, sells, distributes or develops abuse deterrent orally delivered pharmaceuticals, (B) uses any trademarks, tradenames or slogans similar to those of the Company or its affiliates; or (C) is engaged in any other activities that are otherwise competitive with the business of the Company or its affiliates as conducted or proposed to be conducted as of the termination date (collectively, the “Business”). Notwithstanding anything herein to the contrary, if the Executive’s employment with the Company is terminated by the Company for without Cause or by the Executive without for Good Reason (Reason, in each case, within 24 months following a Change in Control, the "Non-Competition Period")Compete Period shall be a period of 24 months. Notwithstanding the foregoing, nothing herein shall preclude the Executive will not, directly or indirectly (whether from performing any duties as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal agent of Company or agent its affiliates or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any actionowning, directly or indirectly, in the aggregate less than 5% of any business competitive with the Company or its affiliates that is subject to financethe reporting obligations of the 1934 Act.
(ii) During the Non-Compete Period, guarantee the Executive shall not, and shall cause his affiliates to not, directly or provide indirectly, call-on, solicit or induce any customer or other business relationship of the Company or its affiliates for the provision of products or services related to the business of the Company or in any other material assistance to any Person engaged in manner that would otherwise interfere with the Triarco Business;business relationship between the Company and its affiliates and their respective customers and other business relationships.
(iii) solicitDuring the Non-Compete Period, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client shall not, and shall cause his affiliates to not, directly or counterparty while in the employ indirectly, call-on, solicit or induce, any employee of the Company or during its affiliates to leave the Non-Competition Period; or
(iv) influence employ of, or attempt to influence any Person that is a contracting party with terminate its relationship with, the Company or its affiliates for any reason whatsoever, nor shall the Executive offer or provide employment (whether such employment is for the Executive or any other business or enterprise), either on a full-time, part-time or consulting basis, to any person who then currently is, or within six (6) months immediately prior thereto was, an employee or independent contractor of the Company; provided, however, the foregoing shall not prohibit a general solicitation to the public through general advertising or similar methods of solicitation not specifically directed at any time during the Non-Competition Period to terminate any written or oral agreement with employees of the Company.
(biv) The Executive acknowledges and agrees that the provisions of this Section 8 are reasonable and necessary to protect the legitimate business interests of the Company and its affiliates. The Executive shall neithernot contest that the Company’s and the Company’s affiliates’ remedies at law for any breach or threat of breach by the Executive or any of his or her affiliates of the provisions of this Section 8 will be inadequate, either on and that the Executive's own account Company and its affiliates shall be entitled to an injunction or injunctions to prevent breaches of the provisions of this Section 8 and to enforce specifically such terms and provisions, in conjunction with addition to any other remedy to which the Company or on behalf its affiliates may be entitled at law or equity. The restrictive covenants contained in this Section 8 are covenants independent of any other Person, solicit provision of this Agreement or entice away from any other agreement between the parties hereunder and the existence of any claim which the Executive may allege against the Company under any officer, employee other provision of this Agreement or customer any other agreement will not prevent the enforcement of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring businessthese covenants.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(dv) The Executive agrees expressly acknowledges that the covenants contained in this Section 10 8(b) are reasonable covenants under a material part of the circumstancesconsideration bargained for by the Company and, without the agreement of the Executive to be bound by such covenants, the Company would not have agreed to enter into this Agreement.
(vi) If any of the provisions contained in this Section 8(b) shall for any reason be held to be excessively broad as to duration, scope, activity or subject, then such provision shall be construed by limiting and further agrees that if in reducing it, so as to be valid and enforceable to the opinion of maximum extent compatible with the applicable law or the determination by a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 4 contracts
Samples: Employment Agreement (Egalet Corp), Employment Agreement (Egalet Corp), Employment Agreement (Egalet Corp)
Non-Competition; Non-Solicitation. (a) In The Executive acknowledges and agrees that the nature of the Confidential Information which the Company commits to provide him during his employment by the Company would make it difficult, if not impossible, for him to perform in a similar capacity for a Competing Business (as defined below) without disclosing or utilizing the Confidential Information. Further, the Executive acknowledges that the Company shall, during the time that the Executive is employed by Company, (a) disclose or entrust to the Executive, and provide the Executive access to, or place the Executive in a position to create or develop, trade secrets or Confidential Information belonging to the Company, (b) place the Executive in a position to develop business goodwill belonging to the Company, (c) disclose or entrust to the Executive business opportunities to be developed for the Company, and (d) make a grant of restricted shares of the Company to the Executive under the LTIP, effective upon the initial public offering of the Company. Accordingly, in consideration of this Agreementthe foregoing, the Executive agrees that, that he will not (other than for the period ending one year after the termination benefit of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(ipursuant to this Agreement) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with individually or on behalf of any other Personperson, solicit firm, corporation or entice away from other entity (whether as an officer, director, employee, shareholder, consultant, contractor, partner, joint venturer, agent, equity owner or in any capacity whatsoever) (1) during the term of Non-Competition (as defined below), carry on or engage in the business of developing and/or implementing drilling and completion techniques to oil-prone resources in previously discovered yet underdeveloped hydrocarbon trends or in any other business activity that the Company is conducting, or is intending to conduct, on the Date of Termination, in each case in the parishes within the State of Louisiana listed in Exhibit A to this Agreement, the State of Texas, and any officerother geographical area in which the Company conducts business and, as of the Date of Termination, was planning to conduct business and to which the Executive’s duties as an employee or customer of the Company related (a “Competing Business”), or (2) during the term hereof or the Term of Non-Competition Period nor engageSolicitation (as defined below), hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business hire, attempt to hire, or any business contact or solicit with respect to which the Executive obtained confidential hiring any employee, officer, or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent consultant of the Company, serving or (ii) solicit, divert or take away any customers, customer leads, or suppliers (as a director or other advisor to any other Person.
(dof the Date of Termination) The Executive agrees that of the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.Company. The
Appears in 4 contracts
Samples: Executive Employment Agreement (Midstates Petroleum Company, Inc.), Executive Employment Agreement (Midstates Petroleum Company, Inc.), Executive Employment Agreement (Midstates Petroleum Company, Inc.)
Non-Competition; Non-Solicitation. (a) In consideration For a period of this Agreementthree (3) years commencing on the Closing Date (the “Restricted Period”), each of the Seller Guarantors, the Executive agrees thatSellers and NewCo shall not, for the period ending one year after the termination and shall not permit any of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will nottheir respective Affiliates to, directly or indirectly (whether i) engage in or assist others in engaging in the Company Business anywhere in the world; (ii) have an interest in any Person that engages directly or indirectly in the Company Business in any capacity, including having such interest as a sole proprietorpartner, partner or venturershareholder, stockholder, director, officermember, employee, consultant principal, agent, trustee or consultant; or (iii) intentionally interfere in any other capacity as principal material respect with the business relationships (whether formed prior to or agent after the Agreement Date) of the Company or through any Personcustomers or suppliers of the Company. Notwithstanding the foregoing, subsidiary or employee acting as nominee or agent):
(i) conduct each Seller Guarantor may own, directly or engage in or be interested in or associated with indirectly, solely as a passive investment, Equity Interests of any Person traded on any national securities exchange if such Seller Guarantor is not a controlling Person of, or a member of a group which conducts controls, such Person and does not, directly or engages indirectly, own five percent (5%) or more of any class of Equity Interests of such Person and (ii) each Seller Guarantor may continue to own, directly or indirectly, the Equity Interests set forth next to such Seller Guarantor’s name on Schedule 6.13(a) that such Person owned as of the Agreement Date; provided, in each case, that no Confidential Information is utilized in doing so.
(b) During the Triarco Business Restricted Period, each of the Seller Guarantors, the Sellers and NewCo shall not, and shall not permit any of their respective Affiliates to, directly or indirectly, hire or solicit any Company Employee, independent contractor, or consultant of the Company (in each case who holds such role within twelve (12) months of the United States;Closing Date) or encourage any such Person to leave such capacity or hire any such Person who has voluntarily (without inducement or encouragement by the Seller Guarantors or the Sellers) left such capacity within six (6) months of such Person doing so; provided, however, that the Seller Guarantors may solicit and hire any (i) Person who responds to any general solicitation which is not directed specifically to any such Person (or such Persons in general), (ii) any Company Employee, independent contractor, or consultant of the Company terminated by Acquiror or the Company following the Closing Date or (iii) any Company Employee, independent contractor, or consultant of the Company who has terminated his or her employment or services to the Company more than six (6) months prior to such hiring or solicitation.
(c) During the Restricted Period, each of the Seller Guarantors, the Sellers and NewCo shall not, and shall not permit any of their respective Affiliates to, directly or indirectly, (i) solicit, entice, divert, or take away, or attempt to solicit, entice, divert or take away, any current or potential clients, customers, vendors or suppliers for purposes of diverting their business or services from the Company, or (ii) take any actionaction that is designed or intended to have the effect of discouraging any existing or potential clients, suppliers, vendors or customers of the Company from maintaining the same business relationship with the Company after the Closing Date as it maintained with the Company prior to the Closing Date.
(d) During the Restricted Period, each of the Seller Guarantors, the Sellers and NewCo shall refrain from, and shall cause their respective Affiliates and Representatives to refrain from, in any manner, directly or indirectly, making any disparaging statement (whether written or oral), that disparages or damages or would be reasonably expected to financedisparage or damage the reputation, guarantee goodwill, or provide any other material assistance to any Person engaged standing in the Triarco Business;
(iii) solicitcommunity of Acquiror, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company, or any of their respective Affiliates and Representatives. Notwithstanding the foregoing, nothing herein prohibits a Seller Guarantor from making truthful statements in connection with any suit or claim before a Governmental Authority or other arbiter.
(be) The Executive shall neitherEach Seller Guarantor, either on each Seller and NewCo acknowledges that a breach or threatened breach of this Section 6.13 would give rise to irreparable harm to Acquiror, for which monetary damages would not be an adequate remedy, and hereby agrees that in the Executive's own account event of a breach or in conjunction with a threatened breach by such Seller Guarantor, such Seller or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment NewCo of any such Person whether obligations, Acquiror shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). In the event of a violation or not breach by any Seller, any Affiliate of such officerSeller, employee including NewCo, or customer would commit any Related Party of such Seller of any agreement set forth in this Section 6.13, the term of the Restricted Period with respect to such Seller shall be extended by a breach period equal to the duration of contract by reason of leaving service such violation or transferring businessbreach.
(cf) The restrictive provisions hereof shall not prohibit Seller Guarantors, the Executive from (i) having an equity interest in Sellers and NewCo hereby acknowledge that the securities geographic boundaries, scope of any entity engaged in prohibited activities and the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% duration of the outstanding equity provisions of this Section 6.13 are reasonable and are no broader than are necessary to protect the legitimate business interests of such entityAcquiror, (ii) investing as a passive investor in an entity engaging in including the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% ability of Acquiror to realize the outstanding equity interests benefit of such entity or (iii) with its bargain under this Agreement and to enjoy the prior written consent goodwill of the Company, serving as and that such restrictions constitute a director material inducement to Acquiror to enter into this Agreement and consummate the Stock Purchase. In the event that any covenant contained in this Section 6.13 should ever be adjudicated to exceed the time, geographic, product or service, or other advisor limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to any reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other Person.
(d) limitations permitted by applicable Law. The Executive agrees that the covenants contained in this Section 10 6.13 and each provision hereof are reasonable severable and distinct covenants under and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the circumstancesremaining covenants or provisions hereof, and further agrees that if in the opinion of a court of competent jurisdiction, any such restraint is not reasonable invalidity or unenforceability in any respect, jurisdiction shall not invalidate or render unenforceable such court shall have the right, power and authority to excise covenant or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amendedin any other jurisdiction.
Appears in 4 contracts
Samples: Stock Purchase Agreement (Revelyst, Inc.), Stock Purchase Agreement (Outdoor Products Spinco Inc.), Stock Purchase Agreement (Outdoor Products Spinco Inc.)
Non-Competition; Non-Solicitation. (a) In consideration Employee hereby agrees and covenants that commencing as of this Agreement, the Executive agrees that, date hereof and for the a period ending of one (1) year after following the termination of the Executive's his employment with the Company by the Company for Cause or by the Executive without Good Reason Employer (the "Non-Competition Limited Period"), the Executive ) he will not, not directly or indirectly engage in or become interested (whether as a sole proprietoran owner, partner or principal, agent, stockholder, member, partner, trustee, venturer, stockholderlender or other investor, director, officer, employee, consultant or in through the agency of any other capacity as principal corporation, limited liability company, partnership, association or agent or through otherwise) in any Personbusiness or enterprise that shall, subsidiary at the time, be in whole or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated substantial part competitive with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ part of the Company or business conducted by Employer during the Non-Competition Period; or
period of Employee's employment with Employer (iv) influence or attempt to influence any Person except that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf ownership of any other Person, solicit or entice away from the Company any officer, employee or customer not more than 1% of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the outstanding securities of any class of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities that are listed on a nationally-recognized national securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does market shall not exceed 5% be considered a breach of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Personthis Section 8(a)).
(db) The Executive Employee agrees and covenants that for the covenants contained in this Section 10 are reasonable covenants under Limited Period he will not (without first obtaining the circumstances, and further agrees that if written permission of Employer) directly or indirectly participate in the opinion solicitation of any business of any type conducted by Employer during the period of Employee's employment with Employer from any person or entity which was a court client or customer of competent jurisdictionEmployer during the period of Employee's employment with Employer, or was a prospective customer of Employer from which Employee (or employees under Employee's supervision) solicited business or for which a proposal for submission was prepared during the period of Employee's employment with Employer.
(c) Employee agrees and covenants that for the Limited Period he will not (without first obtaining the written permission of Employer) directly or indirectly, recruit for employment, or induce or seek to cause such restraint person to terminate his or his employment with Employer, any person who then is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions an employee of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amendedEmployer.
Appears in 4 contracts
Samples: Employment Agreement (Audio Visual Services Corp), Employment Agreement (Caribiner International Inc), Employment Agreement (Caribiner International Inc)
Non-Competition; Non-Solicitation. (a) In consideration of this AgreementThe Participant will not, the Executive agrees that, for during the period ending one year after of employment by or with the Company or any of its subsidiaries, and for a period of twelve (12) months immediately following the termination of the Executive's his or her employment with the Company by the Company and its subsidiaries, for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any actionreason whatsoever, directly or indirectly, to finance, guarantee on his or provide her own behalf or on behalf of or in conjunction with any other material assistance to person, company, partnership, corporation or business of whatever nature:
(a) engage, as an officer, director, shareholder, owner, partner, joint venturer, or in a managerial capacity, whether as an employee, independent contractor, consultant or advisor, or as a sales representative, or make guarantee loans or invest, in or for any Person business engaged in the Triarco Businessbusiness of mechanical contracting services, including heating, ventilation and air conditioning, plumbing, fire protection, piping and electrical and related services (“Services”) in competition with the Company or any of its affiliates within seventy-five (75) miles of where the Company or any affiliated operation or subsidiary conducts business if within the preceding two (2) years the undersigned has had responsibility for, or material input or participation in, the management or operation of such other operation or subsidiary;
(iiib) solicitcall upon any person who is, contact or accept business at that time, an employee of any client or counterparty whom the Company served or conducted business any of its affiliates in a technical, managerial or sales capacity for the purpose or with the intent of enticing such employee away from or whose name became known to the Executive as a potential client or counterparty while in out of the employ of the Company or during any affiliate;
(c) call upon any person or entity which is at that time, or which has been within two (2) years prior to that time, a customer of the Non-Competition PeriodCompany or any affiliate for the purpose of soliciting or selling Services; or
(ivd) influence or attempt to influence call upon any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neitherprospective acquisition candidate, either on the Executive's undersigned’s own account or in conjunction with behalf or on behalf of any other Personcompetitor, solicit or entice away from which acquisition candidate either was called upon by the Company any officer, employee or customer undersigned on behalf of the Company during or any affiliate or was the term hereof subject of an acquisition analysis made by the undersigned on behalf of the Company or any affiliate for the Non-Competition Period nor engage, hire, employ, or induce the employment purpose of any acquiring such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring businessacquisition candidate.
(ce) The restrictive provisions hereof Notwithstanding the above, the foregoing agreements and covenants set forth in this Section 10 shall not be deemed to prohibit the Executive undersigned from acquiring as an investment not more than one percent (i1%) having an equity interest in of the securities capital stock of any entity engaged in the Triarco Business or any a competing business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed whose stock is traded on a nationally-recognized national securities exchange or quotation system or traded in the on an over-the-counter or similar market, to . It is specifically agreed that the extent that such interest does not exceed 5% period during which the agreements and covenants of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) The Executive agrees that the covenants contained undersigned made in this Section 10 shall be effective shall be computed by excluding from such computation any time during which the undersigned is in violation of any provision of this Section 10.
(f) If the Company determines that the undersigned is not in compliance with the agreements and covenants set forth in this Section 10 above, and such non-compliance has not been authorized in advance in a specific written waiver from the Company, the Committee may, without limiting other remedies that may be available to the Company, cause all or any portion of the Award to be forfeited, whether or not previously vested, and may require the undersigned to remit or deliver to the Company the amount of any consideration received by the undersigned upon the sale of any Shares delivered under the Award. The undersigned acknowledges and agrees that the calculation of damages from a breach of the foregoing agreements and covenants would be difficult to calculate accurately and that the remedies provided for herein are reasonable covenants under the circumstances, and not a penalty. The undersigned further agrees that not to challenge the reasonableness of this provision even if in the opinion Company rescinds or withholds the delivery of a court of competent jurisdiction, such restraint is not reasonable in Shares hereunder or withholds any respect, such court shall have amount otherwise payable to the right, power and authority undersigned as an offset to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce effectuate the remainder thereof as so amendedforegoing.
Appears in 4 contracts
Samples: Dollar Denominated Performance Restricted Stock Unit Agreement (Comfort Systems Usa Inc), Dollar Denominated Performance Restricted Stock Unit Agreement (Comfort Systems Usa Inc), Dollar Denominated Performance Restricted Stock Unit Agreement (Comfort Systems Usa Inc)
Non-Competition; Non-Solicitation. (a) In consideration of this Agreement, Employee acknowledges and recognizes the Executive agrees that, for the period ending one year after the termination highly competitive nature of the Executive's employment with business of Alion and Alion’s subsidiaries and accordingly agree as follows:
A. During the Company by Term and the Company for Cause or by the Executive without Good Reason Restricted Period (the "Non-Competition Period"as defined in Section 11.G), the Executive Employee will notnot knowingly (after due inquiry), whether on Employee’s own behalf or on behalf of or in conjunction with any person, company, business entity or other organization whatsoever, directly or indirectly (whether as a sole proprietorsolicit or assist in soliciting in competition with Alion, partner the business of any customer or venturerprospective customer of Alion of which Employee is aware at the time of such termination.
B. During the Restricted Period, stockholder, director, officer, employee, consultant Employee will not directly or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
indirectly: (i) conduct or engage in any services either individually or be interested in or associated on behalf of any person that compete with any Person material business of Alion or Alion’s subsidiaries as conducted at the time Employee ceases to be employed by Alion (including, without limitation, businesses which conducts Alion or engages Alion’s subsidiaries had at such time specific plans to conduct in the Triarco Business within future and as to which plans Employee is aware at the time Employee ceases to be employed by Alion) in the United States;
States (a “Competitive Business”); (ii) take acquire a financial interest in, or otherwise become actively involved with, any actionCompetitive Business, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant, except to financethe extent that such financial interest is a component of compensation or benefits payable pursuant to subsequent employment not otherwise prohibited by this Agreement; or (iii) interfere with, guarantee or provide attempt to interfere with, business relationships formed at or prior to the time Employee ceases to be employed by Alion between Alion or any other material assistance of Alion’s subsidiaries and customers, clients, suppliers of Alion or Alion’s subsidiaries, as to which Employee is aware at the time he ceases to be employed by Alion.
C. Notwithstanding anything to the contrary in this Agreement, Employee may, directly or indirectly own, solely as an investment, securities of any Person person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client Alion or counterparty whom the Company served Alion’s subsidiaries which are publicly traded on a national or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with regional stock exchange or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, or for which such person is required to file annual and quarterly reports with the extent that U.S. Securities and Exchange Commission in accordance with the Securities Exchange Act of 1934, as amended, if Employee: (i) is not a controlling person of, or a member of a group which controls, such interest does not exceed 5% of the outstanding equity interests of such entity, person; and (ii) investing does not, directly or indirectly, own five percent (5%) or more of any class of securities of such person.
D. During the Restricted Period, Employee will not, whether on Employee’s own behalf or on behalf of or in conjunction with any person, company, business entity or other organization whatsoever, directly or indirectly: (i) solicit or encourage any employee of Alion or any of Alion’s affiliates to leave the employment of Alion or such affiliate, provided that such employee was employed (or had an offer of employment) with Alion at the time Employee ceases to be employed by Alion; (ii) without Alion’s written permission, hire any such employee who was employed by Alion or Alion’s affiliates as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests effective date of such entity Employee’s termination of employment with Alion or who left employment with Alion or Alion’s affiliates coincident with, or within three (3) months prior to or after, the termination of Employee’s employment with Alion; or (iii) encourage to cease to work with the prior written consent of the Company, serving as a director Alion or other advisor to Alion’s affiliates any other Personconsultant then under contract with Alion or Alion’s affiliates.
(d) The Executive agrees E. It is expressly understood and agreed that although Employee and Alion consider the covenants restrictions contained in this Section 10 are reasonable covenants under the circumstances11.E to be reasonable, and further agrees that if in the opinion of a final judicial determination is made by a court of competent jurisdictionjurisdiction that the time or territory or any other restriction contained in this letter agreement is an unenforceable restriction against you, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which this Agreement will not be rendered void but will be deemed amended to apply as to such court shall appear not reasonable maximum time and territory and to enforce such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this letter agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding will not affect the remainder thereof as so amendedenforceability of any of the other restrictions contained herein.
F. Throughout the Restricted Period, the Company shall continue to furnish to Employee the pre-selected health, dental, vision, disability and life insurance coverage through the Company’s insured welfare benefit plans and policies, and shall pay the employer’s contribution for such coverages.
Appears in 3 contracts
Samples: Employment Agreement (Alion Science & Technology Corp), Employment Agreement (Alion Science & Technology Corp), Employment Agreement (Alion Science & Technology Corp)
Non-Competition; Non-Solicitation. (a) In consideration The Executive acknowledges (i) that in the course of this Agreement, the Executive agrees that, for the period ending one year after the termination of the Executive's his employment with the Company by he has and will become familiar with trade secrets and customer lists of, and other confidential information concerning, the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period")and its Affiliates, the Executive will notcustomers, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
and clients and (ii) take any actionthat his services will be of special, directly or indirectly, unique and extraordinary value to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neitheragrees that, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or Employment Term and for a period of one year following his termination of employment for any reason (the “Non-Competition Period nor engagePeriod”), hirehe shall not in any manner, employdirectly or indirectly, through any person, firm, corporation or enterprise, alone or as a member of a partnership or as an officer, director, stockholder, investor or employee of or advisor or consultant to any person, firm, corporation or enterprise or otherwise, engage or be engaged, or induce assist any other person, firm, corporation or enterprise in engaging or being engaged (collectively, the employment “Restricted Activity”), in any Competitive Activity (as defined below). For the purposes of this Section 12, a “Competitive Activity” shall mean unless otherwise determined by the Board a business that (i) is being conducted by the Company or any Affiliate at the time in question and (ii) was being conducted, or was under active consideration to be conducted, by the Company or any Affiliate, at the date of the termination of the Executive’s employment. It is agreed and understood that the prohibitions provided for in this Section 12(b) shall not restrict the Executive from engaging in Restricted Activity for any subsidiary, division or Affiliate or unit of a company (collectively a “Related Entity”) if that Related Entity is not engaged in a Competitive Activity, irrespective of whether some other Related Entity of that company engages in what would otherwise be considered to be a Competitive Activity (as long as Executive does not engage in Restricted Activity for such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring businessother Related Entity).
(c) The restrictive provisions hereof Executive further agrees that during the Non-Competition Period he shall not prohibit the Executive from (i) having an equity interest in any manner, directly or indirectly, hire or cause to be hired any employee of or advisor or consultant to the securities of any entity engaged in the Triarco Business Company or any business with respect to which the Executive obtained confidential of its Affiliates for any purpose or proprietary data in any capacity whatsoever, or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed connection with any business to which Section 12(b) applies, call on, service, solicit or traded, so long as such interest does not exceed 5% otherwise do business with any customer of the outstanding equity interests Company or any of such entity its Affiliates; provided, however, that the restriction contained in clause (ii) of this Section 12(c) shall not apply to, or (iii) with interfere with, the prior written consent proper performance by the Executive of the Company, serving as a director or other advisor to any other Personhis duties and responsibilities under Section 3 of this Agreement.
(d) The Executive agrees that the covenants contained Nothing in this Section 10 are reasonable covenants under 12 shall prohibit the circumstancesExecutive from being a passive owner of not more than two percent (2%) of the outstanding common stock, capital stock and further agrees that if equity of any firm, corporation or enterprise so long as the Executive has no active participation in the opinion management of business of such firm, corporation or enterprise.
(e) If the restrictions stated herein are found by a court of competent jurisdictionto be unreasonable, the parties hereto agree that the maximum period, scope or geographical area reasonable under such restraint is not reasonable in any respectcircumstances shall be substituted for the stated period, such scope or area and that the court shall have revise the rightrestrictions contained herein to cover the maximum period, power scope and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amendedarea permitted by law.
Appears in 3 contracts
Samples: Employment Agreement (Viasys Healthcare Inc), Employment Agreement (Viasys Healthcare Inc), Employment Agreement (Viasys Healthcare Inc)
Non-Competition; Non-Solicitation. (a) In consideration of this Agreement, Executive acknowledges and recognizes the Executive agrees that, for the period ending one year after the termination highly competitive nature of the Executive's employment with businesses of the Company by and its affiliates and accordingly agrees as follows:
(i) During the Company for Cause or by the Executive without Good Reason Restricted Period (the "Non-Competition Period"as defined below), the Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”), directly or indirectly indirectly:
(whether as A) engage, in a sole proprietorcompetitive capacity, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated business that competes with any Person which conducts or engages the Company’s business in the Triarco Business within athletic specialty and/or sporting goods retail industry (a “Competitive Business”) in the United States;
(iiB) take in a competitive capacity, enter the employ of, or render any actionservices to, or enter into any contractual agreement or relationship with any Person (or any division or controlled or controlling affiliate of any Person) that engages in a Competitive Business;
(C) acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, to financeas an individual, guarantee partner, shareholder, officer, director, principal, agent, trustee or provide consultant or transfer any business to, or in any other material assistance way facilitate any other Person’s ability to engage in a Competitive Business; or
(D) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of this Agreement) between the Company or any of its affiliates and its customers, suppliers, partners, investors or vendors.
(ii) Notwithstanding anything to the contrary in this Agreement, Executive may, directly or indirectly own, solely as an investment, securities of any Person engaged in the Triarco Business;
(iii) solicit, contact a Competitive Business that are publicly traded on a national or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with regional stock exchange or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter marketmarket if Executive (i) is not a controlling Person of, to the extent or a member of a group that controls, such interest does not exceed 5% of the outstanding equity interests of such entity, Person and (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed does not, directly or tradedindirectly, so long as such interest does not exceed own 5% or more of the outstanding equity interests any class of securities of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(diii) The During the Restricted Period, Executive agrees that the covenants contained shall not, whether on Executive’s own behalf or on behalf of or in this Section 10 are reasonable covenants under the circumstancesconjunction with any Person, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise directly or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.indirectly:
Appears in 3 contracts
Samples: Employment Agreement (Finish Line Inc /In/), Employment Agreement (Finish Line Inc /In/), Employment Agreement (Finish Line Inc /In/)
Non-Competition; Non-Solicitation. (a) In consideration of this Agreement, the The Executive agrees that, for that during the period ending one year after the termination term of the Executive's his employment with the Company by and for a period of eighteen (18) months beginning on the Company date of termination of his employment for Cause or by the Executive without Good Reason any reason (the "“Non-Competition Period"”), the Executive will shall not, directly or indirectly (indirectly, engage or participate in, prepare or set up, assist or have any interest in any person, partnership, corporation, firm, association, or other business organization, entity or enterprise, whether as a sole proprietoran officer, partner or ventureremployee, director, partner, stockholder, directorconsultant or otherwise, that would be the same or competitive with any business activity engaged in by the Company or any Company Managed Fund (a “Restricted Business”). Notwithstanding the foregoing, the Executive shall not be precluded from purchasing or owning, directly or beneficially, as a passive investment, two percent (2%) or less of any class of publicly traded securities if he does not actively participate in or control, directly or indirectly, any investment or other decisions with respect to such entity.
(b) During the Non-Competition Period, the Executive shall not, directly or indirectly:
(i) hire, offer to hire, divert, entice away, solicit or in any other manner persuade, or attempt to do any of the foregoing (each, a “Solicitation”), any person who is an officer, employee, consultant or in board member of the Company or any other capacity as principal Company Managed Fund to accept employment or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct an engagement with a third party or engage in a Solicitation with respect to any person or be interested entity who is, or was, at any time within six months prior to the Solicitation, an officer, employee, agent or consultant of the Company or any Company Managed Fund to work for a third party engaged in a Restricted Business or associated to engage in any of the activities hereby prohibited with any Person which conducts respect to the Executive under Sections 5.2(b)(ii) or engages in the Triarco Business within the United States;(iii) below; or
(ii) take any actionsolicit, directly divert, entice away or indirectly, to finance, guarantee or provide in any other material assistance manner persuade, or attempt to do any Person of the foregoing, on (A) any actual or prospective customer of or investor in the Company or any Company Managed Fund to become a customer of or investor in any third party engaged in a Restricted Business or (B) any customer or investor to cease doing business with the Triarco Business;Company or any Company Managed Fund; or
(iii) solicit, contact make any statements or accept business perform any acts intended to advance the interest of any client person engaged in or counterparty whom proposing to engage in a Restricted Business in any way that is intended to injure the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ interests of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the CompanyManaged Fund.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 3 contracts
Samples: Employment Agreement (American Capital Agency Corp), Employment Agreement (American Capital Agency Corp), Employment Agreement (American Capital Agency Corp)
Non-Competition; Non-Solicitation. (a) In consideration For a period of this Agreement, time equal to the Executive agrees that, for later of the period ending one year fifth anniversary of the effective date of the Merger or the second anniversary after the termination of the Executive's ’s employment with the Company by the Company for Cause or by the Executive without Good Reason Companies (the "Non-Competition “Noncompete Period"”), the Executive will not, directly or indirectly (indirectly, engage, anywhere in the United States, whether such engagement be as a sole an individual, officer, director, proprietor, partner or venturerconsultant, employee, partner, member, stockholder, directorinvestor (other than solely as a holder of less than three percent (3%) of the outstanding capital stock of a corporation whose shares are publicly traded on a national securities exchange or through a national market system or registered pursuant to Section 12(g) of the Securities Exchange Act of 1934, officeras amended), employeecreditor, consultant or in any other capacity as principal or consultant, advisor, sales representative, agent or through any Personother participant, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco a Restricted Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The During the Noncompete Period, Executive shall neithernot directly or indirectly (i) solicit, either on the Executive's own account or in conjunction with or on behalf of any other Persondivert, solicit or entice away from the Company any person who is an officer, agent, or employee of, or customer consultant or advisor to, any of the Company during Companies to accept employment or a consultancy with a third party or (ii) hire any current or future employees of the term hereof or Companies, unless such person has not been employed by any of the Non-Competition Period nor engageCompanies for not less than 12 months (other than, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring businessXxxx Xxxxxxxxx).
(c) The restrictive provisions hereof During the Noncompete Period, Executive shall not prohibit solicit or accept on behalf of yourself or anyone else any of the Executive Companies’ customers and/or clients with a view to sell or provide any product or service competitive with any product or service sold or provided or under development by the Companies. For the purposes of this Agreement, the term “customer” and/or “client” shall include any person or entity to whom the Companies, through its offices in which you had direct or indirect oversight and managerial duties during your employment with the Companies, have sold, provided or been obligated to provide, any service or product, or who has otherwise received any service or benefit from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or informationCompanies, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, within 24 months prior to the extent that such interest does not exceed 5% termination of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) Executive’s employment with the prior written consent of the Company, serving as a director or other advisor to any other PersonCompanies.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 3 contracts
Samples: Confidentiality, Non Competition and Intellectual Property Agreement, Employment Agreement (Gentiva Health Services Inc), Confidentiality, Non Competition and Intellectual Property Agreement (Gentiva Health Services Inc)
Non-Competition; Non-Solicitation. (ai) In consideration The Executive agrees that (A) during the term of this AgreementExecutive’s employment with the Company and, (B) during the 12-month period following the termination of Executive’s employment with the Company for any reason (the “Non-Competition Period”) within the Restricted Territory, the Executive agrees thatshall not, directly or indirectly, engage or participate in, prepare or set up, assist or have any interest in any person, partnership, corporation, firm, association or other business organization, entity or enterprise, whether as an officer, employee, director, partner, stockholder, consultant or otherwise, that engages in the Company’s Business. Notwithstanding the foregoing, (x) the Executive shall not be precluded from purchasing or owning, directly or beneficially, as a passive investment, two percent (2%) or less of any class of publicly traded securities if Executive does not actively participate in or control, directly or indirectly, any investment or other decisions with respect to such entity, and (y) if the Board terminates the Executive’s employment following the end of the Employment Period (for any reason other than a reason that would have constituted a Termination For Cause had such termination of employment occurred during the Employment Period), then solely for purposes of this subparagraph 7(b)(i), the “Non-Competition Period” shall be the 3-month period ending one year after the following such termination of the Executive's employment with ’s employment.
(ii) During the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will shall not, directly or indirectly indirectly:
(whether as A) offer to hire, divert, entice away, solicit or in any other manner persuade, or attempt to do any of the foregoing (each, a sole proprietor“Solicitation”), partner or venturer, stockholder, director, for any person who is an officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ board member of the Company or during any Company Managed Fund to accept employment or an engagement with a third party or engage in a Solicitation with respect to any person or entity who is, or was, at any time within six months prior to the Non-Competition PeriodSolicitation, an officer, employee, agent or consultant of the Company or any Company Managed Fund to work for a third party engaged in the Company’s Business or to engage in any of the activities hereby prohibited with respect to the Executive under this subparagraph 7(b)(ii);
(B) solicit, divert, entice away or in any other manner persuade, or attempt to do any of the foregoing, on (1) any actual or prospective customer of or investor in the Company or any Company Managed Fund to become a customer of or investor in any third party engaged in the Company’s Business or (2) any customer or investor to cease doing business with the Company or any Company Managed Fund; or
(ivC) influence make any statements or attempt perform any acts intended to influence advance the interest of any Person person engaged in or proposing to engage in the Company’s Business in any way that is a contracting party with intended to injure the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer interests of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other PersonCompany Managed Fund.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 3 contracts
Samples: Employment Agreement (AGNC Investment Corp.), Employment Agreement (AGNC Investment Corp.), Employment Agreement (AGNC Investment Corp.)
Non-Competition; Non-Solicitation. In his capacity as an employee, Executive has met with and will continue to meet with the Intrepid Parties’ current or prospective customers, suppliers, partners, licensees or other business relations (acollectively, “Business Relations”) on behalf of the Intrepid Parties, and, as a consequence of using or associating himself with the Intrepid Parties’ name, goodwill, and professional reputation, Executive has been placed in a position where he can develop personal and professional relationships with the Intrepid Parties’ current and prospective customers. In addition, during the course and as a result of Executive’s employment, Executive has been or may be provided certain specialized training or know-how. Executive acknowledges that this goodwill and reputation, as well as Executive’s knowledge of Confidential Information and specialized training and know-how, could be used unfairly in competition against the Intrepid Parties. Accordingly, in consideration of the employment of Executive by the Company pursuant to this Agreement, Executive agrees that:
(i) during the time period commencing on the date hereof and terminating on the Non-Competition/Non-Solicitation End Date (as defined below), Executive shall not directly or indirectly, individually or collectively in conjunction with others, engage in activities that compete with the businesses that the Intrepid Parties are then engaged in (or, with respect to periods on and after the end of the Term, are engaged in at the time of the termination of Executive’s employment) in whatever geographic regions the Intrepid Parties then engage in such businesses; or
(ii) during the time period commencing on the date hereof and terminating on the Non-Competition/Non-Solicitation End Date (as defined below), Executive shall not directly or indirectly through another entity or person (i) induce or attempt to induce any employee of the Intrepid Parties to leave the employ of the Intrepid Parties, (ii) hire any person who was employed by the Intrepid Parties at any time during the one-year period immediately preceding the termination of Executive’s employment with the Intrepid Parties, or (iii) induce or attempt to induce any current or prospective Business Relation of the Intrepid Parties (including, without limitation, any business entity that the Intrepid Parties have contacted in order to make a proposal to enter into a business relationship) to withdraw, curtail or cease doing business with the Intrepid Parties. For purposes of this Agreement, the “Non-Competition/Non-Solicitation End Date” shall mean the date that is 24 months from the date this Agreement is terminated or expires; provided, however, that in the event this Agreement is terminated more than 24 months after the Effective Date by the Company other than pursuant to paragraphs 4(a) or 4(b), or by Executive for Good Reason pursuant to paragraph 4(d), the Non-Competition/Non-Solicitation End Date shall mean the date on which the then-remaining Term would have otherwise expired (assuming no further extension thereof). Executive acknowledges that as an executive of a publicly traded company he falls within the exception to C.R.S 8-2-113(2)(d), which exempts executive and management personnel and officers from the prohibitions of non-compete provisions. Executive agrees that, for during the period ending one year after the termination for which Executive has continuing obligations under this paragraph 7(b), he shall inform any new employer or other person or entity with whom Executive enters into a business relationship, before accepting employment or entering into such business relationship, of the Executive's employment with existence of this Agreement and shall give the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period")employer, the Executive will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director person or other advisor to any other Personentity a copy of this paragraph 7(b).
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 3 contracts
Samples: Employment Agreement (Intrepid Potash, Inc.), Employment Agreement (Intrepid Potash, Inc.), Employment Agreement (Intrepid Potash, Inc.)
Non-Competition; Non-Solicitation. (a) In consideration of this Agreement, Executive hereby agrees that during the Executive agrees that, for Term and the 12-month period ending one year after the following any termination of Executive’s employment on or prior to the Automatic Expiration Date, regardless of how or why such employment ends (but excluding termination of Executive's ’s employment solely as a result of the natural expiration of the Term), Executive shall not, directly or indirectly, (i) employ, solicit or retain, induce or encourage any other person or entity to employ or retain, any person who is, or who at any time in the 12-month period prior to such time had been, employed or retained by the Company or any of its subsidiaries or affiliates, or solicit, induce or encourage any such person to leave employment with the Company by or its affiliates, (ii) solicit any person or entity that is, or that at any time in the 12-month period prior to such time had been, a customer or client or prospective customer or client of the Company for Cause or by encourage any such person or entity to cease being a customer or client of the Executive without Good Reason Company or (the "Non-Competition Period")iii) provide services, the Executive will not, directly or indirectly (whether as a sole proprietorprincipal, partner or venturer, stockholderagent, director, officer, employee, consultant consultant, advisor, shareholder, partner, member or otherwise, alone or in association with any other capacity person, corporation, partnership, limited liability company, sole proprietorship or unincorporated business or any non-U.S. business entity (whether or not for profit) (any such entity, a “Business”), to any Competing Business (as principal or agent or through defined below) in any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages geographic area in the Triarco world in which the Company or any of its affiliates is engaged in business. For purposes of this Appendix I, the term “Competing Business” shall mean any Business within engaged in the United States;
Business Area. For purposes of this Appendix I, the term “Business Area” shall mean developing, manufacturing, sourcing or supplying firearms, tactical gear, sporting accessories, shooting accessories, recreational accessories, outdoor products or small-caliber ammunition, but in each case, only with respect to products that are the same as or similar to products developed, manufactured, sourced or supplied during the Term by the Company or any of its subsidiaries or affiliates or any other Contemplated Business, whether directly to or to wholesale customers for resale to, the local or federal law enforcement, U.S. Government (iiincluding the U.S. Department of Defense), foreign government or consumer markets. For purposes of this Appendix I, the term “Contemplated Business” shall mean any Business with which the Company or any of its subsidiaries or affiliates engaged in substantive discussions or entered into any contract, agreement, agreement in principle, arrangement or other similar document (including, for the avoidance of doubt, any nondisclosure or confidentiality agreement), in each case, during the Term and with respect to a merger, joint venture, acquisition or other similar extraordinary corporate transaction between the Company or any of its subsidiaries or affiliates on the one hand and such Business or any of its subsidiaries or affiliates on the other hand; provided that any such merger, joint venture, acquisition or other similar extraordinary corporate transaction is consummated no later than six months following the Term. Notwithstanding the foregoing, the restrictions of this Appendix I.1(a)(i) take any actionshall not apply to the placement of general advertisements or the use of general search firm services with respect to a particular geographic area, but which are not targeted, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ towards employees of the Company or during any of its subsidiaries. Nothing in this Appendix I.1 shall be construed as denying Executive the Non-Competition Period; or
(iv) influence or attempt right to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are corporation listed on a nationally-recognized national securities exchange or quotation system or traded in the over-the-counter market, an amount up to the extent that such interest does not exceed 5% of the outstanding equity interests number of such entitysecurities. For the avoidance of doubt, (iithis Appendix I.1(a) investing shall not apply if Executive’s employment with the Company terminates following the Automatic Expiration Date or on the Automatic Expiration Date solely as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% result of the outstanding equity interests of such entity or (iii) with the prior written consent natural expiration of the Company, serving as a director or other advisor to any other PersonTerm.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 3 contracts
Samples: Employment Agreement (Vista Outdoor Inc.), Employment Agreement (Alliant Techsystems Inc), Employment Agreement (Vista Outdoor Inc.)
Non-Competition; Non-Solicitation. (ai) In consideration of this AgreementSubject to Section 4(b)(iii), the Executive agrees that, for the Employment Period, i.e., the period commencing on the Effective Date and ending one year after on the termination of date on which the Executive's ’s employment with the Company by is terminated for any reason (such period also shall be referred to as the Company for Cause or by the Executive without Good Reason (the "“Non-Competition Period"”), the Executive will not, shall not directly or indirectly (whether indirectly, alone or in association with others, or as a sole proprietorpartner, partner or venturer, stockholderofficer, director, officer, employee, consultant consultant, agent, independent contractor, lender, member, manager or in any other capacity as principal equity holder, or agent or through on behalf, of any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in the Business or be interested any business activity that is in or associated competition with the Business of any Person which conducts or engages in member of the Triarco Business Company Group within the United States;Restricted Territory.
(ii) take The Executive agrees that, for the period commencing on the Effective Date and ending twenty four (24) months after the date on which the Executive’s employment with the Company is terminated for any actionreason (such period shall be referred to as the “Non-Solicitation Period”), the Executive shall not directly or indirectly, to financein any capacity, guarantee either alone, separately or provide in association with, or on behalf of, any other Person solicit for employment or any business relationship any current or former employee or independent contractor of any member of the Company Group who was employed or engaged by the Company within six (6) months of the solicitation and with whom Executive has had material assistance to personal contact, supervised or managed, or otherwise possesses Confidential Information or the Company’s goodwill; provided, however, that a general solicitation or advertisement of employment conducted by or on behalf of the Executive or any Person engaged of the Executive’s Affiliates in newspapers, trade journals, the Triarco Business;Internet, through recruiters or by any similar means, in each case, not specifically directed at any of the Company Group’s employees or independent contractors shall not, in and of itself, be deemed a breach of this subsection (ii).
(iii) solicitNotwithstanding the restrictions set forth in Section 2 and/or Section 4(b)(i), contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known nothing contained in Section 4(b) shall be deemed to prohibit the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
from (bA) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf being a passive owner of less than five percent (5%) of any other Person, solicit class or entice away from the Company any officer, employee or customer series of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment outstanding securities of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the publicly traded securities of any entity engaged or (B) volunteering in the Triarco Business any capacity with any civic, educational or charitable organization, or any business trade association, in each case without seeking or obtaining approval by the Company or the Board; provided, that in each case such activities and services do not materially interfere or conflict with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% performance of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed Executive’s duties hereunder or traded, so long as such interest does not exceed 5% violate any of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other PersonRestrictive Covenants.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 3 contracts
Samples: Employment Agreement (Oncology Institute, Inc.), Employment Agreement (Oncology Institute, Inc.), Employment Agreement (Oncology Institute, Inc.)
Non-Competition; Non-Solicitation. (a) In consideration of this AgreementAt any time during the Participant's Non-Competition Period, the Executive agrees thatParticipant shall not, for himself or herself or on behalf of any other Person, participate in, directly or indirectly, any Competing Business in any country in which the Company or any of its Subsidiaries or licensees operates or conducts business as of such time (or with respect to the period ending one year after the date of the termination of the ExecutiveParticipant's employment, as of such date); provided that, nothing in this sentence shall restrict the Participant from passive ownership of three (3) percent or less of the publicly traded securities of any Person. During the Participant's employment with the Company by the Company and/or its Subsidiaries and for Cause or by the Executive without Good Reason (the "Non-Competition Period")1 year thereafter, the Executive will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
Participant shall not (i) conduct induce or engage in or be interested in or associated with attempt to induce any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business employee of any client or counterparty whom the Company served or conducted business with or whose name became known its Subsidiaries to the Executive as a potential client or counterparty while in leave the employ of the Company or during the Non-Competition Period; or
(iv) influence its Subsidiaries, or attempt to influence in any Person that is a contracting party way interfere with the relationship between the Company or its Subsidiaries and any employee thereof, (ii) hire directly or through another entity any person who was an employee (other than clerical or administrative support personnel) of the Company or its Subsidiaries at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) induce or attempt to induce any customer, supplier, licensee or other business relation of the Company or its Subsidiaries to cease doing business with the prior written consent of Company or its Subsidiaries, or in any way interfere with the Companyrelationship between any such customer, serving as a director supplier, licensee or other advisor business relation and the Company or its Subsidiaries (including, without limitation, making any negative statements or communications concerning the Company or its Subsidiaries); provided that, clauses (i) and (ii) above shall not apply with respect to any other Personperson solicited or employed after the date that is twelve (12) months after the date on which such person's employment with the Company and its Subsidiaries is terminated.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 3 contracts
Samples: Restricted Performance Based Stock Award Agreement (Toys R Us Inc), Restricted Stock Unit Award Agreement (Toys R Us Inc), Nonqualified Stock Option Agreement (Toys R Us Inc)
Non-Competition; Non-Solicitation. (a) In consideration of this Agreement, For the Executive agrees that, for the period ending one year after the termination duration of the Executive's employment with Employment Period and, unless the Company by terminates the Company for Executive’s employment without Cause or by Executive terminates his employment for Good Reason, during the Executive without Good Reason Severance Period (the "“Non-Competition compete Period"”), the Executive will shall not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, except as specifically provided in Section 2(c), own, manage, operate, finance or control a directly competitive entity that engages or conducts business in an identical manner to financethe Company; provided, guarantee however, that the Executive may own less than 10% in the aggregate of the outstanding shares of any class of securities of any enterprise other than any such enterprise with which the Company competes or provide any other material assistance to any Person is currently engaged in a joint venture, if such securities are listed on any national or regional securities exchange or have been registered under Section 12(b) or (g) of the Triarco Business;
(iii) solicitExchange Act. Notwithstanding the foregoing, contact or accept business if the Executive shall present to the Board any opportunity within the scope of any client or counterparty whom the prohibited activities described above, and the Company served or conducted business with or whose name became known shall not elect to pursue such opportunity within a reasonable time, then the Executive shall be permitted to pursue such opportunity, subject to the Executive as a potential client or counterparty while in the employ requirements of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the CompanySection 2(c).
(b) The During the Employment Period and for a period of six (6) months following termination of the Executive’s employment with the Company, the Executive shall neithernot:
(i) persuade, either on solicit or hire, or attempt to recruit, persuade, solicit or hire, any employee, or independent contractor of, or consultant to, the Company, or its Affiliates, to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement (the foregoing shall not apply to general solicitations made by the Executive's own account ); or
(ii) attempt in any manner to solicit or in conjunction accept from any customer or client of the Company or any of its Affiliates, with whom the Company or any of its Affiliates had significant contact during the term of the Agreement, business of the kind or competitive with the business done by the Company or any of its Affiliates with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or is reasonably expected to do with the Company or any of its Affiliates or if any such customer elects to move its business to a person other than the Company or any of its Affiliates, provide any services (of the kind or competitive with the Business of the Company or any of its Affiliates) for such customer, or have any discussions regarding any such service with such customer, on behalf of any such other Person, solicit or entice away from person. The Executive recognizes and agrees that because a violation by the Executive of his obligations under this Section 7 will cause irreparable harm to the Company any officerthat would be difficult to quantify and for which money damages would be inadequate, employee or customer of the Company during shall have the term hereof right to injunctive relief to prevent or the Non-Competition Period nor engage, hire, employ, or induce the employment of restrain any such Person whether or not such officerviolation, employee or customer would commit without the necessity of posting a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) bond. The Executive expressly agrees that the covenants contained in this Section 10 character, duration and scope of the covenant not to compete are reasonable covenants under in light of the circumstancescircumstances as they exist at the date upon which this Agreement has been executed. However, and further agrees that if in the opinion of should a determination nonetheless be made by a court of competent jurisdictionjurisdiction at a later date that the character, duration or geographical scope of the covenant not to compete is unreasonable in light of the circumstances as they then exist, then it is the intention of the Executive, on the one hand, and the Company, on the other, that the covenant not to compete shall be construed by the court in such restraint is not a manner as to impose only those restrictions on the conduct of the Executive which are reasonable in any respect, such court shall have light of the right, power circumstances as they then exist and authority necessary to excise or modify such provision or provisions assure the Company of these covenants which as the intended benefit of the covenant not to such court shall appear not reasonable and to enforce the remainder thereof as so amendedcompete.
Appears in 3 contracts
Samples: Employment Services Agreement (Eventure Interactive, Inc.), Employment Services Agreement (Live Event Media, Inc.), Employment Services Agreement (Live Event Media, Inc.)
Non-Competition; Non-Solicitation. (a) In consideration of Unless Executive terminates this Agreement, the Executive agrees thatAgreement pursuant to Section 6(e), for the period ending one year after the termination duration of the Executive's employment with Employment Period and three (3) years following the Company by the Company for Cause or by the Executive without Good Reason Employment Period (the "“Non-Competition compete Period"”), the Executive will shall not, directly or indirectly indirectly, engage or invest in, own, manage, operate, finance, control or participate in the ownership, management, operation, financing, or control of, be employed by, associated with, or in any manner connected with, lend any credit to, or render services or advice to, any business, firm, corporation, partnership, association, joint venture or other entity that engages or conducts any business the same as or substantially similar to the Business or currently proposed to be engaged in or conducted by the Company or included in the future strategic plan of the Business, anywhere within the United States of America; provided, however, that the Executive may own less than 5% of the outstanding shares of any class of securities of any enterprise (whether but without otherwise participating in the activities of such enterprise) if such securities are listed on any national or regional securities exchange or have been registered under Section 12(g) of the Securities Exchange Act of 1934, as a sole amended. During the Employment Period and the Non-compete Period, Executive will not and will not cause another person, business or commercial enterprise, without the express prior written approval of the Company, to hire, recruit, solicit or otherwise induce or influence any proprietor, partner or venturerpartner, stockholder, lender, director, officer, employee, consultant sales agent, joint venturer, investor, lessor, customer, consultant, agent, representative or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated person which has a business relationship with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is had a contracting party business relationship with the Company at to discontinue or reduce such employment, agency or business relationship. The Executive recognizes and agrees that because a violation by him of his obligations under this Section 7 will cause irreparable harm to the Company that would be difficult to quantify and for which money damages would be inadequate, the Company shall have the right to injunctive relief to prevent or restrain any time during such violation, without the necessity of posting a bond. The Non-Competition compete Period to terminate will be extended by the duration of any written or oral agreement with violation by the Company.
(b) Executive of any of his obligations under this Section 7. The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) The Executive expressly agrees that the covenants contained in this Section 10 character, duration and scope of the covenant not to compete are reasonable covenants under in light of the circumstancescircumstances as they exist at the date upon which this Agreement has been executed. However, and further agrees that if in the opinion of should a determination nonetheless be made by a court of competent jurisdictionjurisdiction at a later date that the character, duration or geographical scope of the covenant not to compete is unreasonable in light of the circumstances as they then exist, then it is the intention of both the Executive and the Company that the covenant not to compete shall be construed by the court in such restraint is not a manner as to impose only those restrictions on the conduct of the Executive which are reasonable in any respect, such court shall have light of the right, power circumstances as they then exist and authority necessary to excise or modify such provision or provisions assure the Company of these covenants which as the intended benefit of the covenant to such court shall appear not reasonable and to enforce the remainder thereof as so amendedcompete.
Appears in 3 contracts
Samples: Employment Agreement (UFood Restaurant Group, Inc.), Employment Agreement (UFood Restaurant Group, Inc.), Employment Agreement (UFood Restaurant Group, Inc.)
Non-Competition; Non-Solicitation. (a) In consideration of this Agreement, For the Executive agrees that, for the period ending one year after the termination duration of the Executive's employment with Engagement Period and, unless the Company by terminates the Company for Executive’s engagement without Cause or by Executive terminates his engagement for Good Reason, during the Executive without Good Reason Severance Period (the "“Non-Competition compete Period"”), the Executive will shall not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, except as specifically provided in Section 2(c), own, manage, operate, finance or control a directly competitive entity that engages or conducts business in an identical manner to financethe Company; provided, guarantee however, that the Executive may own less than 10% in the aggregate of the outstanding shares of any class of securities of any enterprise other than any such enterprise with which the Company competes or provide any other material assistance to any Person is currently engaged in a joint venture, if such securities are listed on any national or regional securities exchange or have been registered under Section 12(b) or (g) of the Triarco Business;
(iii) solicitExchange Act. Notwithstanding the foregoing, contact or accept business if the Executive shall present to the Board any opportunity within the scope of any client or counterparty whom the prohibited activities described above, and the Company served or conducted business with or whose name became known shall not elect to pursue such opportunity within a reasonable time, then the Executive shall be permitted to pursue such opportunity, subject to the Executive as a potential client or counterparty while in the employ requirements of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the CompanySection 2(c).
(b) The During the Engagement Period and for a period of three (3) months following termination of the Executive’s engagement with the Company, the Executive shall neithernot:
(i) persuade, either on solicit or hire, or attempt to recruit, persuade, solicit or hire, any employee, or independent contractor of, or consultant to, the Executive's own account Company, or its Affiliates, to leave the engagement (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an engagement agreement; or
(ii) attempt in conjunction any manner to solicit or accept from any customer or client of the Company or any of its Affiliates, with whom the Company or any of its Affiliates had significant contact during the term of the Agreement, business of the kind or competitive with the business done by the Company or any of its Affiliates with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or is reasonably expected to do with the Company or any of its Affiliates or if any such customer elects to move its business to a person other than the Company or any of its Affiliates, provide any services (of the kind or competitive with the Business of the Company or any of its Affiliates) for such customer, or have any discussions regarding any such service with such customer, on behalf of any such other Person, solicit or entice away from person. The Executive recognizes and agrees that because a violation by the Executive of his obligations under this Section 5 will cause irreparable harm to the Company any officerthat would be difficult to quantify and for which money damages would be inadequate, employee or customer of the Company during shall have the term hereof right to injunctive relief to prevent or the Non-Competition Period nor engage, hire, employ, or induce the employment of restrain any such Person whether or not such officerviolation, employee or customer would commit without the necessity of posting a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) bond. The Executive expressly agrees that the covenants contained in this Section 10 character, duration and scope of the covenant not to compete are reasonable covenants under in light of the circumstances, and further agrees that if in as they exist at the opinion of date upon which this Agreement has been executed. However, should a determination nonetheless be made by a court of competent jurisdictionjurisdiction at a later date that the character, duration or geographical scope of the covenant not to compete is unreasonable in light of the circumstances as they then exist, then it is the intention of the Executive, on the one hand, and the Company, on the other, that the covenant not to compete shall be construed by the court in such restraint is not a manner as to impose only those restrictions on the conduct of the Executive which are reasonable in any respect, such court shall have light of the right, power circumstances as they then exist and authority necessary to excise or modify such provision or provisions assure the Company of these covenants which as the intended benefit of the covenant not to such court shall appear not reasonable and to enforce the remainder thereof as so amendedcompete.
Appears in 3 contracts
Samples: Consulting Services Agreement (Simlatus Corp), Consulting Services Agreement (Simlatus Corp), Consulting Services Agreement (Simlatus Corp)
Non-Competition; Non-Solicitation. A. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its affiliates and accordingly agrees as follows:
B. During the Employment Term and for a period of one year following the date Executive ceases to be employed by the Company or an affiliate (aor for a period of two (2) In consideration years if Executive ceases to be employed by the Company or an affiliate by reason of employment termination pursuant to Section IV.A. above) (the “Restricted Period”), Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”), directly or indirectly solicit or assist in soliciting in competition with the Company, the business of any client or prospective client:
1. with whom Executive had personal contact or dealings on behalf of the Company during the one year period preceding Executive’s termination of employment;
2. with whom employees reporting to Executive have had personal contact or dealings on behalf of the Company during the one year immediately preceding the Executive’s termination of employment; or
3. for whom Executive had direct or indirect responsibility during the one year immediately preceding Executive’s termination of employment.
C. During the Restricted Period, Executive will not directly or indirectly:
1. engage in any business that materially competes with any business of the Company or its affiliates (including, without limitation, businesses which the Company or its affiliates have specific plans to conduct within twelve months from the effective of Executive’s termination and as to which Executive is personally aware of or should be personally aware of such planning in the future and as to which Executive is aware of such planning) in any geographical area that is within 100 miles of any geographical area where the Company or its affiliates manufactures, produces, sells, leases, rents, licenses or otherwise provides its products or services and over which Executive had responsibilities (a “Competitive Business”);
2. enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person) who or which engages in a Competitive Business;
3. acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; or
4. interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of this Agreement) between the Company or any of its affiliates and customers, clients, suppliers, partners, members or investors of the Company or its affiliates.
D. Notwithstanding anything to the contrary in this Agreement, Executive agrees thatmay, for directly or indirectly, own, solely as an investment, securities of any Person engaged in the period ending one year after business of the Company or its affiliates that is publicly traded on a national stock exchange or on the over-the-counter market if Executive (i) is not a controlling person of, or a member of a group which controls, such person or (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person.
E. 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:
1. solicit or encourage any employee of the Company or its affiliates to leave the employment of the Company or its affiliates; or
2. hire any such employee who was employed by the Company or its affiliates as of the date of Executive’s termination of the Executive's employment with the Company by or who left the employment of the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period")its affiliates coincident with, or within one year prior to or after, the termination of Executive’s employment with the Company.
F. During the Restricted Period, Executive will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, solicit or encourage to finance, guarantee or provide any other material assistance cease to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business work with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence its affiliates any Person that is a contracting party consultant then under contract with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Companyits affiliates.
(b) The G. It is expressly understood and agreed that although Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from and the Company any officer, employee or customer of consider the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) The Executive agrees that the covenants restrictions contained in this Section 10 are reasonable covenants under the circumstancesV. to be reasonable, and further agrees that if in the opinion of a final judicial determination is made by a court of competent jurisdictionjurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which this Agreement shall not be rendered void but shall be deemed amended to apply as to such court shall appear not reasonable maximum time and territory and to enforce such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, 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 remainder thereof as so amendedenforceability of any of the other restrictions contained herein.
Appears in 3 contracts
Samples: Employment Agreement (Integrated Electrical Services Inc), Employment Agreement (Integrated Electrical Services Inc), Employment Agreement (Integrated Electrical Services Inc)
Non-Competition; Non-Solicitation. Employee agrees that during the Employment Period and for a period of one (1) year thereafter ("Restrictive Period"), Employee will not directly or indirectly, or in any capacity, individually or in any corporation, firm, association or other business entity, compete or attempt to compete with Company, any parent, subsidiary, or affiliate of Company, or any corporation merged into, or merged or consolidated with Company (a) In consideration by soliciting business from any customer, broker and/or client of Company with which Employee was involved (directly or indirectly) during the Employment Period, if such solicited business competes with the business of Company, or (b) inducing any personnel of Company to leave the service of Company, or by employing or contracting with any such personnel. The provisions of this AgreementSection 10 shall be construed as an Agreement independent of any other provision contained herein and shall be enforceable in both Law and Equity, including by temporary or permanent Restraining Orders, notwithstanding the Executive existence of any claim or cause of action by Employee against Company, whether predicated on this Agreement or otherwise. Notwithstanding the foregoing, if Company terminates Employee's employment for convenience hereunder, Company agrees that, for the period ending one year after that Employee may upon the termination of the Executive's employment Employment Period, perform services within the information technology industry, provided however that Employee does not compete with the Company Company, (a) by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will not, soliciting directly or indirectly (whether as a sole proprietorany Company employees, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
and/or (b) The Executive shall neitherby soliciting directly or indirectly any new business from Company's then existing customers or Prospective Customers, either on during the Executive's own account or in conjunction with or on behalf of Restrictive Period. "Prospective Customer" means any other Person, solicit or entice away from entity that the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employis, or induce has been within the employment of any such Person whether or not such officertwelve (12) months prior to Employee's termination, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities process of any entity engaged in soliciting, negotiating with, or otherwise communicating with, for the Triarco Business purpose of providing goods or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Personservices.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 3 contracts
Samples: Employment Agreement (Enherent Corp), Employment Agreement (Enherent Corp), Employment Agreement (Enherent Corp)
Non-Competition; Non-Solicitation. Transcend and Seller each hereby agrees that, from and after the Closing Date through December 31, 2002 neither of them shall (a) In consideration of this Agreement, the Executive agrees that, for the period ending one year after the termination of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any actionserve, directly or indirectly, to financeas an operator, guarantee owner, partner, consultant, officer, director, or provide employee of any other material assistance to any Person firm, entity or business or corporation engaged in the Triarco Business;
business presently being conducted by Seller (iiior any business related thereto) within the United States; (b) solicit or attempt to solicit, contact or accept business of from, any entity which is a client or counterparty whom the Company served customer of CORE, Purchaser, Seller (including CORE's subsidiaries) or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company which at any time during the Non-Competition Period twelve month period prior to terminate any written or oral agreement with the Company.
(b) The Executive shall neitherClosing Date, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee was a client or customer of any of the Company during Business, for the term hereof purpose of doing business with such client or customer in competition with Purchaser or CORE (including CORE's subsidiaries) (for the Non-Competition Period nor engagepurpose of this covenant, the clients and customers of Purchaser shall include those entities with which Seller had held discussions or negotiations concerning the Business within the twelve month period prior to the Closing Date), or (c) solicit, attempt to hire, employor hire any employee or consultant of Purchaser (including Continuing Employees) or CORE (including CORE's subsidiaries), or induce the employment of assist in such solicitation or hiring by any such Person whether other person or not such officerentity, or encourage any employee or customer would commit a consultant or Purchaser (including Continuing Employees) or CORE (including CORE's subsidiaries) to terminate his or her relationship with Purchaser or CORE. It is agreed that the remedy at law for any breach of contract the foregoing shall be inadequate and that CORE and Purchaser shall be entitled to any other remedy permitted by law. In the event that this Section shall be determined by arbitrators or by any court of competent jurisdiction to be unenforceable by reason of leaving service its extending for too great a period of time or transferring business.
(c) The restrictive provisions hereof over too large a geographic area or over too great a range of activities, it shall not prohibit be interpreted to extend only over the Executive from (i) having an equity interest in the securities maximum period of any entity engaged in the Triarco Business time, geographic area or any business with respect range of activities as to which the Executive obtained confidential it may be enforceable. Nothing herein contained shall prevent Transcend or proprietary data Seller from holding or information, which entity's making an investment in securities are listed on a nationally-recognized national securities exchange or quotation system or traded sold in the over-the-counter market, to the extent that provided such interest does investments do not exceed in the aggregate five percent (5% %) of the issued and outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion capital stock of a court corporation which is a competitor within the meaning of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amendedthis Section.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Transcend Services Inc), Asset Purchase Agreement (Core Inc), Asset Purchase Agreement (Transcend Services Inc)
Non-Competition; Non-Solicitation. (a) The CONSULTANT agrees and acknowledges that, in connection with his engagement with the Company, he will be provided with access to and become familiar with confidential and proprietary information and trade secrets belonging to the Company. In consideration of his engagement with the Company pursuant to this AgreementAgreement and for other good and valuable consideration, the Executive receipt of which is hereby acknowledged, the CONSULTANT agrees that, while he is engaged by the Company and for the a one (1) year period ending one year after the termination of the Executive's employment his engagement, with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period")cause, the Executive will he shall not, directly either on his own behalf or indirectly (whether as a sole proprietoron behalf of any third party, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in except on behalf of the Triarco Business within the United States;
(ii) take any actionCompany, directly or indirectly, engage in any of the following activities.
(1) Other than through his ownership of stock of the Company, directly or indirectly, own, manage, operate, join, control, or participate in the ownership, management, operation control, or be connected as proprietor, partners, stockholder, officer, director, principal, agent, representative, joint venturer, investor, lender, consultant or otherwise with, or use or permit his name to financebe used in connection with, guarantee any business or provide enterprise engaged directly or indirectly in competition with the business conducted by the Company, at any other material assistance time during such period, The foregoing restriction shall not be construed to prohibit the CONSULTANT’s ownership of not more than one percent (1%) of any Person class of securities of any corporation that is engaged in any of the Triarco Business;foregoing businesses having a class of securities registered pursuant to the Securities Exchange Act of 1934, as amended; or
(iii2) solicit, contact or accept business of Attempt in any manner to solicit from any client or counterparty whom customer of the Company served at the time of the CONSULTANT’s termination, business of the type performed by the Company or conducted to persuade any client of the Company to cease to do business or to reduce the amount of business which any such client has customarily done or actively contemplates doing with the Company; or
(3) Recruit, solicit or whose name became known induce, or attempt to the Executive as a potential client induce, any employee or counterparty while in the employ employees of the Company or during the Non-Competition Period; or
(iv) influence its affiliates to terminate their employment with, or attempt to influence any Person that is a contracting party otherwise cease their relationship with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Companyits affiliates.
(b) The Executive shall neitherparties acknowledge and agree that the restrictions placed upon the CONSULTANT herein are reasonable and necessary to protect the Company’s legitimate interests. The CONSULTANT further acknowledges that, either on the Executive's own account or in conjunction with or on behalf of any other Personbased upon his education, solicit or entice away experience, and training, this non-compete provision will not prevent him from the Company any officer, employee or customer of the Company earning a livelihood and supporting himself and his family during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring businessrelevant time period.
(c) The restrictive provisions hereof If any restriction set forth in this Section 7 is found by any court of competent jurisdiction to be unenforceable as overbroad, it shall not prohibit be reformed and interpreted to extend over the Executive from (i) having an equity interest in the securities maximum period of any entity engaged in the Triarco Business time, range of activities or any business with respect geographic areas as to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Personit may be enforceable.
(d) The Executive agrees that the covenants contained in provisions of this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion 7 shall survive termination or expiration of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amendedthis Agreement.
Appears in 3 contracts
Samples: Consulting Agreement (HypGen Inc), Consulting Agreement (Mega Bridge Inc.), Consulting Agreement (Mega Bridge Inc.)
Non-Competition; Non-Solicitation. The Executive acknowledges that his employment with the Company will, of necessity, provide him with specialized, unique knowledge and confidential information and that, in light of the competitive nature of the Company's business, the Company could be harmed if such knowledge and information were used in competition with the Company. The Executive further acknowledges that the Company would not enter into this Agreement and undertake the substantial obligations under this Agreement without the Executive's agreement to the following provisions of this Section 6:
(a) In consideration During the Restricted Period (as defined below) he will not, directly or indirectly, as an officer, director, stockholder, partner, associate, employee, consultant, owner, agent, co-venturer or otherwise, become or be interested in or be associated with any other corporation, firm or business engaged in any business that competes with the Company. The Executive's ownership, directly or indirectly, of not more than three percent (3%) of the issued and outstanding stock of any corporation or other entity, the shares of which are traded on a national securities exchange or the Nasdaq Stock Market, shall not in any event be deemed to be a violation of the provisions of this AgreementSection 6(a).
(b) During the Restricted Period, the Executive agrees thatshall not call upon, for solicit, divert or take away, or attempt to call upon, solicit, divert or take away, business of a type the period ending one year after same or similar to the business as conducted by the Company prior to the date of termination of the Executive's employment with the Company by from any of the Customers of the Company for Cause upon whom he called or by whom he solicited or to whom he catered or with whom he became acquainted after entering the employ of the Company.
(c) The Executive without Good Reason (acknowledges and agrees that during the "Nontime of his employment with the Company, he will gain valuable information about the identity, qualifications and on-Competition going performance of the employees of the Company. During the Restricted Period"), the Executive will notshall not (i) hire, directly employ, offer employment to, or indirectly seek to hire, employ or offer employment to, any of the Company's senior level employees with whom he had contact prior to such termination of employment or (whether as a sole proprietor, partner ii) solicit or venturer, stockholder, director, officer, employee, consultant encourage any such senior level employee to seek or in accept employment with any other capacity as principal person or agent or through entity.
(d) The Executive represents and warrants that the knowledge, skills and abilities he currently possesses are sufficient to permit him, in the event of his termination of employment hereunder for any Personreason, subsidiary or employee acting as nominee or agent):to earn a livelihood satisfactory to himself without violating any provision of this Agreement.
(e) For the purposes of this Section 6, "Restriction Period" shall mean the period beginning on the date hereof and ending with:
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within case of a termination of the United StatesExecutive's employment without Cause or a Constructive Termination Without Cause, the end of the Severance Period;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Businesscase of a termination of the Executive's employment for Cause, the first anniversary of such termination;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ case of a termination of the Company or during Executive's employment upon the expiration of the Term of Employment that results in the commencement of the Non-Competition renewal Severance Period pursuant to Section 4(e) above, the end of the Non-renewal Severance Period; or
(iv) influence or attempt to influence any Person that is in the case of a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on voluntary termination of the Executive's own account or in conjunction with or on behalf employment pursuant to Section 4(f) above, the date of any other Personsuch termination; provided, solicit or entice away however, that within 10 days after the Executive announces his resignation from the Company any officer, employee or customer of the Company during may notify the term hereof or Executive that it will cause the Non-Competition Restriction Period nor engageto be 12 months and, hirein consideration for such period, employthe Company will pay to the Executive, or induce within 30 days after his employment terminates, an amount in cash equal to the employment annual Base Salary in effect at the time the Executive gives his notice of any termination. Failure by the Company to timely make such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit payment will release the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Personthis obligation.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 3 contracts
Samples: Employment Agreement (Pacer Health Corp), Employment Agreement (Pacer Health Corp), Employment Agreement (Pacer Health Corp)
Non-Competition; Non-Solicitation. (a) In view of the unique and valuable services it is expected that you will render to the Company, your knowledge of its trade secrets, and other proprietary information relating to the then business of the Company and in consideration of this Agreementthe compensation to be received hereunder, the Executive agrees that, for the period ending one year after the termination of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive you will not, during the period you are employed by the Company, engage in, or otherwise directly or indirectly (whether indirectly, be employed by, or act as a sole proprietorconsultant or lender to, partner or ventureror, stockholderwithout the prior written approval of the Board, be a director, officer, employeeowner, consultant or in partner of, any other capacity as principal business or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person organization that is engaged in the Triarco Business;
(iii) solicit, contact or accept business same field of any client or counterparty whom research and development that the Company served is then engaged in by the Company. Nothing herein shall be deemed to preclude you from being an officer, director, owner, investor in, or conducted partner of, any business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that organization which is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement not competing with the Company, provided the same does not in any manner whatsoever impair your ability to perform your duties under this Agreement.
(b) The Executive shall neitherDuring your employment and for a period of one year following the termination of your employment, either on you will not directly or indirectly reveal the Executive's own account or in conjunction with or on behalf of any other Personname of, solicit or interfere with, or endeavor to entice away from the Company any officerof its suppliers, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employcustomers, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring businessemployees.
(c) The restrictive provisions hereof During your employment and for a period of one year following the termination of your employment, you shall not prohibit make any critical or disparaging statements about the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business Company or any business with respect to which the Executive obtained confidential of its employees, directors or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor products to any other Personperson or entity.
(d) The Executive agrees Since a breach of the provisions of this Paragraph 7 could not adequately be compensated by money damages, the Company shall be entitled, in addition to any other right and remedy available to it, to an injunction restraining such breach or a threatened breach, and in either case no bond or other security shall be required in connection therewith, and you hereby consent to the issuance of such injunction. You agree that the covenants provisions of this Paragraph 7 are necessary and reasonable to protect the Company in the conduct of its business. If any restriction contained in this Section 10 are reasonable covenants under Paragraph 7 shall be deemed to be invalid, illegal, or unenforceable by reason of the circumstancesextent, and further agrees that if in duration, or geographical scope thereof, or otherwise, then the opinion of a court of competent jurisdiction, making such restraint is not reasonable in any respect, such court determination shall have the rightright to reduce such extent, power duration, geographical scope, or other provisions hereof, and authority to excise or modify in its reduced form such provision or provisions restriction shall then be enforceable in the manner contemplated hereby. This Paragraph 7 shall survive the termination of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amendedthis Agreement.
Appears in 3 contracts
Samples: Employment Agreement (New Energy Technologies, Inc.), Employment Agreement (New Energy Technologies, Inc.), Employment Agreement (New Energy Technologies, Inc.)
Non-Competition; Non-Solicitation. (a) In consideration For a period of this time equal to the Term plus the greater of (i) any period that Executive is entitled to receive Base Salary and Continued Benefits under the Employment Agreement, the Executive agrees that, for the period ending or (ii) one year after the termination commencing as of the Executive's employment with Termination Date, unless the Company Employment Agreement is terminated by the Company without Cause (including, as a result of non renewal) or Executive resigns with Good Reason, in each case, for Cause or by a period of time equal to the Term plus the period during which the Company continues to pay Executive without Good Reason his Base Salary and Continued Benefits pursuant to Section 7 of the Employment Agreement (the "“Non-Competition Compete Period"”), whenever the same shall occur and for whatever reason, Executive will not, directly or indirectly indirectly, engage, anywhere in the Restricted Area (as defined below), whether such engagement be as a sole proprietoran individual, partner or venturer, stockholderofficer, director, officerproprietor, employee, consultant partner, member, investor (other than solely as a holder of less than two percent (2%) of the outstanding capital stock of a corporation whose shares are publicly traded on a national securities exchange or in any other capacity through a national market system or registered pursuant to Section 12(g) of the Securities Exchange Act of 1934, as principal or amended), creditor, consultant, advisor, sales representative, agent or through any Personother participant, subsidiary or employee acting in a Restricted Business (as nominee or agent):defined herein).
(ib) conduct or engage in or be interested in or associated with any Person which conducts or engages in During the Triarco Business within the United States;
(ii) take any actionNon-Compete Period Executive shall not, directly or indirectly, to finance(i) cause, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact induce or accept business encourage (each, a “Solicitation”) any person who is or was, prior to such Solicitation, an employee of the Company, any client Subsidiaries, Holdings, Newco or counterparty whom any of their respective subsidiaries to leave employment with the Company served Company, any Subsidiaries, Holdings, Newco or conducted business with any of their respective subsidiaries, or whose name became known to hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Executive as a potential client Company, any Subsidiaries, Holdings, Newco or counterparty while in the employ any of their respective subsidiaries (including any former customer of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence Subsidiaries and any Person person that is becomes a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director any Subsidiaries, Holdings, Newco or other advisor to any of their respective subsidiaries after the Closing) or any other Person.
(d) The Executive agrees that person who has a material business relationship with the covenants contained in this Section 10 are reasonable covenants under the circumstancesCompany, and further agrees that if in the opinion any Subsidiaries, Holdings, Newco or any of a court of competent jurisdictiontheir respective subsidiaries, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise terminate or modify any such provision actual or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amendedprospective relationship.
Appears in 3 contracts
Samples: Employment Agreement (Reliant Software, Inc.), Employment Agreement (Community Choice Financial Inc.), Employment Agreement (Community Choice Financial Inc.)
Non-Competition; Non-Solicitation. (a) In The Executive acknowledges and agrees that the nature of the Confidential Information which the Company commits to provide him during his employment by the Company would make it difficult, if not impossible, for him to perform in a similar capacity for a Competing Business (as defined below) without disclosing or utilizing the Confidential Information. Further, the Executive acknowledges that the Company shall, during the time that the Executive is employed by Company, (a) disclose or entrust to the Executive, and provide the Executive access to, or place the Executive in a position to create or develop, trade secrets or Confidential Information belonging to the Company, (b) place the Executive in a position to develop business goodwill belonging to the Company, and (c) disclose or entrust to the Executive business opportunities to be developed for the Company. Accordingly, in consideration of this Agreementthe foregoing, the Executive agrees that, that he will not (other than for the period ending one year after the termination benefit of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(ipursuant to this Agreement) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with individually or on behalf of any other Personperson, solicit firm, corporation or entice away from other entity (whether as an officer, director, employee, shareholder, consultant, contractor, partner, joint venturer, agent, equity owner or in any capacity whatsoever) (1) during the term of Non-Competition (as defined below), carry on or engage in the business of developing and/or implementing drilling and completion techniques to oil-prone resources in previously discovered yet underdeveloped hydrocarbon trends or in any other business activity that the Company is conducting, or is intending to conduct, on the Date of Termination, in each case in the parishes within the State of Louisiana listed in Exhibit A to this Agreement, the State of Texas, and any officerother geographical area in which the Company conducts business and, as of the Date of Termination, was planning to conduct business and to which the Executive’s duties as an employee or customer of the Company related (a “Competing Business”), or (2) during the term hereof or the Term of Non-Competition Period nor engageSolicitation (as defined below), hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business hire, attempt to hire, or any business contact or solicit with respect to which the Executive obtained confidential hiring any employee, officer, or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent consultant of the Company, serving or (ii) solicit, divert or take away any customers, customer leads, or suppliers (as a director or other advisor to any other Personof the Date of Termination) of the Company. The “Term of Non-Competition” and the “Term of Non-Solicitation” shall be defined as that term beginning on the Effective Date and continuing until the date that is the one-year anniversary of the termination of Executive’s employment.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 3 contracts
Samples: Executive Agreement (Makara Strategic Acquisition Corp.), Executive Agreement (Makara Strategic Acquisition Corp.), Executive Agreement (Makara Strategic Acquisition Corp.)
Non-Competition; Non-Solicitation. (a) In consideration Executive acknowledges that in the course of this Agreementproviding services to the Company he will become familiar with trade secrets and other confidential information concerning the Company and its Affiliates and their predecessors and that his services have been and will be of special, unique and extraordinary value to the Company and its Affiliates. Therefore, Executive agrees thatthat during the Employment Period and for a period of two (2) years thereafter (the “Non-compete Period”), he shall not directly or indirectly own, manage, control, participate in, consult with, render services for, or in any manner engage in any business which manufactures, sells or distributes products and accessories for the period ending one year after printing and publishing industry, including, without limitation, cleaning systems and related consumables, fluid management and ink control systems, web press protection systems, drying systems, blending and packaging services and related services and parts or any business competing for the same customers as the business of the Company or any of its Affiliates as such business exists or is in process and is known to Executive on the date of the termination of the Executive's employment with Employment Period within any geographical area in which the Company by or any of its Affiliates engages or plans to engage in any such business on the Company for Cause or by date of termination of the Employment Period. Nothing herein shall prohibit Executive without Good Reason (from being a passive owner of not more than 1% of the "Non-Competition Period")outstanding stock of any class of a corporation which is publicly traded, so long as Executive has no active participation in the business of such corporation, provided, however, that Executive will not, is not directly or indirectly responsible for, or does not have control over, the business of such competitor which directly competes with any of the business of the Company or any of its Affiliates on the date of termination of the Employment Period.
(whether as b) During the Employment Period and for a sole proprietorperiod of two (2) years thereafter, partner Executive shall not directly or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or indirectly through any Person, subsidiary or employee acting as nominee or agent):
another entity (i) conduct induce or engage in or be interested in or associated with attempt to induce any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business employee of any client or counterparty whom the Company served or conducted business with any of its Affiliates (other than an employee of the Company or whose name became known such Affiliate who is responding to the Executive as a potential client or counterparty while in general advertisement seeking to hire such a person) to leave the employ of the Company or during the Non-Competition Period; or
(iv) influence such Affiliate, or attempt to influence in any Person that is a contracting party way interfere with the relationship between the Company or such Affiliate and any employee thereof, (ii) hire any person who was an employee of the Company or any of its Affiliates at any time during the Non-Competition Employment Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, than an employee or customer of the Company during or such Affiliate who is responding to a general advertisement seeking to hire such a person), (iii) induce or attempt to induce any customer, supplier, licensee or other business relation of the term hereof Company or any of its Affiliates to cease doing business with the Non-Competition Period nor engage, hire, employCompany or such Affiliate, or induce in any way interfere with the employment of relationship between any such Person whether customer, supplier, licensee or not business relation and the Company or any such officerAffiliate or (iv) disparage in any way the Company or any of its Affiliates or any of their businesses, employee products or customer would commit a breach services or any of contract by reason of leaving service their members, managers, partners, directors, officers or transferring businessemployees.
(c) The restrictive provisions hereof If, at the time of enforcement of this Section 8, a court shall not prohibit hold that the Executive from (i) having an equity interest in duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the securities of any entity engaged in parties agree that the Triarco Business maximum duration, scope or any business with respect area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed to which revise the Executive obtained confidential or proprietary data or informationrestrictions contained herein to cover the maximum period, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Personscope and area permitted by law.
(d) The In the event of the breach or a threatened breach by Executive agrees that of any of the covenants contained in provisions of this Section 10 are reasonable covenants under 8, the circumstancesCompany, in addition and further agrees that if supplementary to other rights and remedies existing in the opinion of a its favor, may apply to any court of law or equity of competent jurisdiction, such restraint is not reasonable jurisdiction for specific performance and/or injunctive or other relief in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and order to enforce or prevent any violations of the remainder thereof as so amendedprovisions hereof (without posting a bond or other security).
(e) For purposes of this Agreement, “Affiliate” shall mean, with respect to any person, any other person directly or indirectly controlling (including but not limited to all directors and officers of such person), controlled by, or under direct or indirect common control with such person. A person shall be deemed to control another person if such person possesses, directly or indirectly, the power (i) to vote 10% or more of the securities having ordinary voting power for the election of directors (or equivalent governing body) of such other person or (ii) to direct or cause the direction of the management and policies of such other person, whether through the ownership of voting securities, by contract or otherwise
Appears in 2 contracts
Samples: Employment Agreement (Baldwin Technology Co Inc), Employment Agreement (Baldwin Technology Co Inc)
Non-Competition; Non-Solicitation. (a) In Each Seller Party (which, only for purposes of this Section 5.9 includes the Halcyon Members) acknowledges that it or he is familiar with the trade secrets and other confidential information of the Company. Therefore, and in further consideration of this Agreement, the Executive agrees that, for the period ending one year after the termination of the Executive's employment with compensation to be paid to the Company by hereunder, each Seller Party agrees to the Company covenants set forth in this Section 5.9 and acknowledges that Purchaser would not have entered into this Agreement but for Cause or by Seller Parties’ agreement to the Executive without Good Reason (the "Non-Competition Period"), the Executive will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or restrictions set forth in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):this Section 5.9.
(ib) conduct or engage in or be interested in or associated with During the Restricted Period, neither the Company, nor any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any actionHalcyon Party shall, directly or indirectly, (i) own, operate, lease, manage, control, engage in, invest in, lend to, own any debt or equity security of, permit its or his name to financebe used by, guarantee act as consultant or provide advisor to, render services for (alone or in association with any other material assistance to Person) or otherwise assist in any manner within the Restricted Territory any Person engaged in any business that is competitive with the Triarco Business;
Business or (iiiii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence sell or attempt to influence sell any product or service that competes with the Business or with any Product to any Person that is a contracting party with customer or client of the Company or of Purchaser as of the Closing Date or was a customer or client of the Company at any time during the Non-Competition Period to terminate any written or oral agreement with two (2) year period preceding the Company.
(b) The Executive Closing Date; provided; however, that nothing herein shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from prohibit the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on Halcyon Party from being a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% passive beneficial owner of less than two percent (2%) of the outstanding equity interests stock of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or tradedany publicly-traded corporation, so long as such interest does not exceed 5no activities associated therewith compete with Purchaser. For purposes of this Agreement, “Restricted Period” means the longer of (i) two (2) years from and after the Closing Date or (ii) the period during which the Company and the Halcyon Parties own in the aggregate, beneficially or of record, at least 10% of the issued and outstanding equity interests common stock of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other PersonPurchaser.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Kakarala Kartik), Asset Purchase Agreement (Smart Server, Inc)
Non-Competition; Non-Solicitation. (a) In consideration of this AgreementThe Employee acknowledges that during the Employee’s relationship with the Company, the Executive Company will be providing the Employee, and the Employee will receive from the Company, special training and knowledge, including Confidential Information (as defined herein above). The Employee acknowledges that this Confidential Information is valuable to the Company and, therefore, its protection and maintenance constitutes a legitimate interest to be protected by this covenant not to compete. Therefore, the Employee agrees thatwhile employed by, contracted, with, or otherwise engaged with the Company or any of its affiliated entities and for the a period ending one year of two (2) years after the termination of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period")such relationship, the Executive will Employee shall not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in without the Triarco Business within the United States;
(ii) take any actionCompany’s prior written consent, directly or indirectly: become an owner, to financepartner, guarantee employee, independent contractor, agent, or provide otherwise involved with any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business that competes with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt provides management services to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with within a twenty (20) mile radius of the Company’s location(s).
(b) The Executive shall neither, either on the Executive's own account Employee agrees and covenants that while employed by or in conjunction otherwise engaged with or on behalf of any other Person, solicit or entice away from the Company any officerand for a period of two (2) years after the termination of such relationship, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof Employee shall not prohibit the Executive from either (i) having an equity interest in the securities of any entity engaged in the Triarco Business directly as a partner, employer, agent, independent contractor, or any business with respect to which the Executive obtained confidential employee, or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as indirectly through a passive investor corporation, partnership, affiliate, subsidiary, or otherwise, unless approved by the Company:
(a) solicit, induce, or attempt to induce, in an entity engaging in the Triarco Business connection with any business competitive with that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director patients of the Company to cease using the Company; or
(b) solicit, induce, or attempt to induce, any employee, consultant, referral source, owner, or other advisor persons associated with the Company to leave the employment of, or to discontinue their association with the Company. Failure to adhere to the covenants herein will result in discipline, up to and including immediate termination of this Agreement, and may result in other legal action being taken by the Company with respect to any other Person.
(d) The Executive agrees that breach of the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amendedherein.
Appears in 2 contracts
Samples: Employment Agreement (American International Holdings Corp.), Employment Agreement (American International Holdings Corp.)
Non-Competition; Non-Solicitation. (ai) In consideration of this Agreement, the Executive agrees that, for During the period beginning on the Effective Date and ending one year 6 months (12 months in the case of a termination occurring after an IPO) following the termination of date on which the Executive's ’s employment with the Company is terminated for any reason (the “Non-Compete Period”), the Executive covenants and agrees not to, and shall cause his affiliates not to, directly or indirectly anywhere in the world, conduct, manage, operate, engage in or have an ownership interest in any business or enterprise that (A) manufactures, sells, distributes or develops abuse deterrent orally delivered pharmaceuticals, (B) uses any trademarks, tradenames or slogans similar to those of the Company or its affiliates; or (C) is engaged in any other activities that are otherwise competitive with the business of the Company or its affiliates as conducted or proposed to be conducted as of the termination date (collectively, the “Business”). Notwithstanding anything herein to the contrary, if the Executive’s employment with the Company is terminated by the Company for without Cause or by the Executive without for Good Reason (Reason, in each case, following an IPO and within 24 months following a Change in Control, the "Non-Competition Period")Compete Period shall be a period of 24 months. Notwithstanding the foregoing, nothing herein shall preclude the Executive will not, directly or indirectly (whether from performing any duties as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal agent of Company or agent its affiliates or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any actionowning, directly or indirectly, in the aggregate less than 5% of any business competitive with the Company or its affiliates that is subject to financethe reporting obligations of the 1934 Act.
(ii) During the Non-Compete Period, guarantee the Executive shall not, and shall cause his affiliates to not, directly or provide indirectly, call-on, solicit or induce any customer or other business relationship of the Company or its affiliates for the provision of products or services related to the business of the Company or in any other material assistance to any Person engaged in manner that would otherwise interfere with the Triarco Business;business relationship between the Company and its affiliates and their respective customers and other business relationships.
(iii) solicitDuring the Non-Compete Period, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client shall not, and shall cause his affiliates to not, directly or counterparty while in the employ indirectly, call-on, solicit or induce, any employee of the Company or during its affiliates to leave the Non-Competition Period; or
(iv) influence employ of, or attempt to influence any Person that is a contracting party with terminate its relationship with, the Company or its affiliates for any reason whatsoever, nor shall the Executive offer or provide employment (whether such employment is for the Executive or any other business or enterprise), either on a full-time, part-time or consulting basis, to any person who then currently is, or within six (6) months immediately prior thereto was, an employee or independent contractor of the Company; provided, however, the foregoing shall not prohibit a general solicitation to the public through general advertising or similar methods of solicitation not specifically directed at any time during the Non-Competition Period to terminate any written or oral agreement with employees of the Company.
(biv) The Executive acknowledges and agrees that the provisions of this Section 8 are reasonable and necessary to protect the legitimate business interests of the Company and its affiliates. The Executive shall neithernot contest that the Company’s and the Company’s affiliates’ remedies at law for any breach or threat of breach by the Executive or any of his or her affiliates of the provisions of this Section 8 will be inadequate, either on and that the Executive's own account Company and its affiliates shall be entitled to an injunction or injunctions to prevent breaches of the provisions of this Section 8 and to enforce specifically such terms and provisions, in conjunction with addition to any other remedy to which the Company or on behalf its affiliates may be entitled at law or equity. The restrictive covenants contained in this Section 8 are covenants independent of any other Person, solicit provision of this Agreement or entice away from any other agreement between the parties hereunder and the existence of any claim which the Executive may allege against the Company under any officer, employee other provision of this Agreement or customer any other agreement will not prevent the enforcement of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring businessthese covenants.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(dv) The Executive agrees expressly acknowledges that the covenants contained in this Section 10 8(b) are reasonable covenants under a material part of the circumstancesconsideration bargained for by the Company and, without the agreement of the Executive to be bound by such covenants, the Company would not have agreed to enter into this Agreement.
(vi) If any of the provisions contained in this Section 8(b) shall for any reason be held to be excessively broad as to duration, scope, activity or subject, then such provision shall be construed by limiting and further agrees that if in reducing it, so as to be valid and enforceable to the opinion of maximum extent compatible with the applicable law or the determination by a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 2 contracts
Samples: Employment Agreement (Egalet Corp), Employment Agreement (Egalet Corp)
Non-Competition; Non-Solicitation. (a) In consideration of order to induce the Company to enter into this Agreement, until the Executive agrees that, for the period ending one year after the termination of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
earlier of: (i) conduct termination of this Agreement or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any actionexpiration of four (4) years from the Closing (the “Non Compete Period”), Shaked shall not, and shall cause affiliates controlled by him not to, directly or indirectly:
4.3.1 engage, to financepromote, guarantee establish, market, become or provide be financially interested in, consult with or for, or associate in a business relationship with, or in any manner become involved, in any other material assistance to person, business (or any Person engaged component thereof), occupation, work, operation or any other activity, anywhere in the Triarco Business;
(iii) solicitworld, contact which engages or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known intends to the Executive as a potential client or counterparty while engage in the employ developing, producing, offering, distributing, licensing, selling or supporting of products or services similar to, or that competes with the business (or any component thereof), products and services of the Company and any of its affiliates, as currently conducted and as currently proposed by the Company to be conducted by the Company (a “Competing Business”);
4.3.2 solicit the services, hire or retain any person employed or engaged by the Company and/or any of its affiliates as employees or contractors during the Non-Competition Compete Period; or, or otherwise encourage or induce any such employee or contractor to terminate their engagement with the Company and/or any of its affiliates by their resignation, retirement or otherwise or to become an employee, contractor, consultant or service provider of any person other than the Company and/or its affiliates. The foregoing shall not apply to approaches initiated by persons employed or engaged by the Company and/or any of its affiliates, including as a response to general solicitation of employment, at any time after the lapse of 18 months from the Closing or if CEO was not aware that such persons were employed or engaged by the Company and had no active involvement in their hiring;
(iv) influence 4.3.3 solicit or otherwise encourage or call on any actual or potential customer, supplier, distributor, vendor, service provider or agent of the Company and/or any of its affiliates prior to the Closing for any Competing Business or influence, induce or attempt to influence or induce any Person that is a contracting party with the Company at any time during the Non-Competition Period customer, supplier, distributor, vendor, service provider or agent to terminate terminate, reduce or adversely modify any written or oral agreement agreement, relationship, or course of dealing with the Company.Company and/or any of its affiliates; and
(b) The Executive 4.3.4 without limiting the generality of the foregoing, register or challenge any intellectual property rights owned, used or otherwise licensed by the Company and/or any of its subsidiaries. Inconsideration for the obligations and undertakings under this Section 4.3, the Company shall neither, either pay Shaked on the Executive's own account or Termination Date $400,000. Shaked acknowledges that in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer light of the Company during length of time that the term hereof or CEO and Xx. Xxxxxx served as the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent chief executive officer of the Company, serving as a director or other advisor to any other Person.
(d) The Executive agrees that the foregoing payment and the critical significance of the covenants contained in under this Section 10 4.3 to the Company’s business, the covenants under this Section 4.3 are reasonable covenants and fair under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 2 contracts
Samples: Separation Agreement (Retalix LTD), Separation Agreement (Retalix LTD)
Non-Competition; Non-Solicitation. (a) a. In consideration of this Agreementthe offer of employment, severance benefits and Options to be granted to Xxxxx hereunder, and for other good and valuable consideration, the Executive agrees thatreceipt and sufficiency of which are hereby acknowledged, for the period ending one year after the termination of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive Term, Xxxxx shall neithernot, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with without the prior written consent of the Company, serving anywhere in the world, directly or indirectly, (i) enter into the employ of or render any services to any Competitive Business; (ii) engage in any Competitive Business for his own account; (iii) become associated with or interested in any Competitive Business as an individual, partner, shareholder, creditor, director, officer, principal, agent, employee, trustee, consultant, advisor or in any other relationship or capacity; (iv) employ or retain, or have or cause any other person or entity to employ or retain, any person who was employed or retained by the Company while Xxxxx was employed by the Company; or (v) solicit, interfere with, or endeavor to entice away from the Company, for the benefit of a director Competitive Business, any of its customers or other advisor persons with whom the Company has a contractual relationship. For purposes of this Agreement, a “Competitive Business” shall mean any person, corporation, partnership, firm or other entity which sells or has plans to sell ten (10) or more brands of luxury or high-end designer apparel and/or fashion accessories at prices that are consistently discounted to manufacturer’s suggested retail prices. However, nothing in this Agreement shall preclude Xxxxx from investing his personal assets in the securities of any corporation or other Personbusiness entity which is engaged in a Competitive Business if such securities are traded on a national stock exchange or in the over-the-counter market and if such investment does not result in him beneficially owning, at any time, more than three percent (3%) of the publicly-traded equity securities of such Competitive Business. For purposes of this agreement, the “Non-Competition Term” shall mean a period beginning upon the commencement of the Employment Term and ending on the two (2) year anniversary of the end of the Employment Term.
(d) The Executive agrees x. Xxxxx and the Company agree that the covenants of non-competition and non-solicitation contained in this Section 10 paragraph 6 are reasonable covenants under the circumstances, and further agrees agree that if if, in the opinion of a any court of competent jurisdiction, such restraint is covenants are not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such the court shall appear not reasonable and to enforce the remainder thereof of these covenants as so amended. Xxxxx agrees that any breach of the covenants contained in this paragraph 6 would irreparably injure the Company. Accordingly, Xxxxx agrees that the Company, in addition to pursuing any other remedies it may have in law or in equity, may obtain an injunction against Xxxxx from any court having jurisdiction over the matter, restraining any further violation of this paragraph 6.
Appears in 2 contracts
Samples: Employment Agreement (Bluefly Inc), Employment Agreement (Bluefly Inc)
Non-Competition; Non-Solicitation. (a) In consideration For a period of this Agreement, three (3) years commencing on the Executive agrees that, for the period ending one year after the termination of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason Closing Date (the "Non-Competition “Restricted Period"”), the Executive will Company and Linden shall not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in and shall not permit any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any actionof their Affiliates to, directly or indirectly, to finance(i) own or operate, guarantee or provide assist others in operating, any other material assistance to post-secondary college or university that is domiciled in the State of California (a “Competing Business”); (ii) have an interest directly or indirectly in any Person engaged in the Triarco that owns or operates a Competing Business;
, including as a partner, shareholder, member, employee, principal, agent, trustee, or consultant; or (iii) solicit, contact or accept business of intentionally interfere in any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party material respect with the Company at business relationships (whether formed prior to or after the date of this Agreement) between Newco or Aspen and students or suppliers of Newco; provided, that any time during the Non-Competition Period to terminate any written or oral agreement with the Companyownership of Aspen Common Stock shall not be precluded by this Section 5.07.
(b) The Executive During the Restricted Period, the Company and Linden shall neithernot, either on and shall not permit any of their respective Affiliates to, directly or indirectly, hire or solicit any employee or contractor of Aspen or Newco, or encourage any such employee or contractor to leave such employment or hire any such employee or contractor who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees or contractors; provided, that nothing in this Section 5.07(b) shall prevent the Executive's own account Company, Linden or in conjunction with or on behalf any of any other Person, solicit or entice away their respective Affiliates from hiring (i) after ninety (90) days from the Company date of termination of engagement, any officer, employee or customer of the Company during the term hereof contractor whose engagement has been terminated by Aspen or the Non-Competition Period nor engage, hire, employNewco, or induce (ii) after one hundred eighty (180) days from the employment date of termination of engagement, any such Person whether or not such officer, employee or customer would commit a breach of contract contractor whose engagement has been terminated by reason of leaving service the employee or transferring businesscontractor.
(c) The restrictive provisions hereof During the Restricted Period, the Company and Linden shall not, and shall not prohibit the Executive permit any of their Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any students, or potential student, Newco or Aspen for purposes of diverting their business or services from (i) having an equity interest in the securities of any entity engaged in the Triarco Business Newco or any business with respect Aspen to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other PersonCompeting Business.
(d) The Executive Company and Linden acknowledge that a breach or threatened breach of this Section 5.07 would give rise to irreparable harm to Aspen and Newco, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by the Company or Linden or any or their Affiliates of any such obligations, Aspen and Newco shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) The Company and Linden acknowledge that the restrictions contained in this Section 5.07 are reasonable and necessary to protect the legitimate interests of Aspen and Newco and constitute a material inducement to Aspen and Newco to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.07 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 10 5.07 and each provision hereof are reasonable severable and distinct covenants under and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the circumstancesremaining covenants or provisions hereof, and further agrees that if any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
(f) Anything in this Section 5.07 to the contrary notwithstanding, the provisions of this Section 5.07 will not apply to (i) the Company’s or Linden’s ownership of the Aspen Common Stock or the Convertible Note, (ii) any service by any Affiliate of Linden on the board of USU, Aspen or Newco, or (iii) the Company’s or Linden’s or their Affiliates’ activities with AcademixDirect, Inc., DeXL, LLC or Mind Streams, L.L.C. so long as such activities are performed for entities with no offices or other physical presence in the opinion State of a court California or (iv) Linden’s and its Affiliates’ ownership of, and activities on behalf of, any Competing Business (or any successors thereto) with respect to which Linden has an ownership interest as of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amendeddate hereof.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Aspen Group, Inc.)
Non-Competition; Non-Solicitation. (a) a. In consideration of this Agreementthe Incentive Award and severance benefits hereunder, and for other good and valuable consideration, the Executive agrees thatreceipt and sufficiency of which are hereby acknowledged, for during the period ending one year after the termination term of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (this Agreement and during the "Non-Competition Period"), the Executive will " (as defined in paragraph 6(c) below) Payner shall not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with without the prior written consent of the Company, serving anywhere in the world, directly or indirectly, (i) enter into the employ of or render any services to any "Competitive Business" (as defined below); (ii) engage in any Competitive Business for her own account; (iii) become associated with or interested in any Competitive Business as an individual, partner, shareholder, creditor, director, officer, principal, agent, employee, trustee, consultant, advisor or in any other relationship or capacity; (iv) employ or retain, or have or cause any other person or entity to employ or retain, any person who was employed or retained by the Company on the date of termination of this Agreement or who had been employed by the Company within the nine month period prior to the date of termination of this Agreement, except if, at the time of such employment or retention, such person had not been employed by the Company during the nine month period immediately preceding such employment or retention; or (v) solicit, interfere with, or endeavor to entice away from the Company, for the benefit of a director Competitive Business, any of its customers or other advisor to persons with whom the Company has a contractual relationship. For purposes of this Agreement, a "Competitive Business" shall mean: (a) any person, corporation, partnership, firm or other Person.
entity whose primary business is the sale or consignment of off-price apparel and/or off-price fashion accessories; (db) The Executive agrees that any division of a person, corporation, partnership, firm or other entity (but not the covenants contained person, corporation, partnership, firm or other entity itself) whose primary business is internet based selling or consignment, and, in either such case, consists of ten (10) or more brands of off-price apparel and/or off-price fashion accessories; or (c) the off-price divisions of Nordstrom, Saks Fifth Avenue, Neiman Marcus or the off-price division of another retailer of ten (10) or more brands of apparel and/or fashion accessories. However, nothing in this Section 10 are reasonable covenants under the circumstances, and further agrees that if Agreement shall preclude Payner from investing her personal assets in the opinion securities of any corporation or other business entity which is engaged in a court Competitive Business if such securities are traded on a national stock exchange or in the over-the-counter market and if such investment does not result in her beneficially owning, at any time, more than 3% of competent jurisdiction, the publicly-traded equity securities of such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amendedCompetitive Business.
Appears in 2 contracts
Samples: Employment Agreement (Bluefly Inc), Employment Agreement (Bluefly Inc)
Non-Competition; Non-Solicitation. (a) In consideration of this Agreement, For the Executive agrees that, for the period ending one year after the termination duration of the Executive's employment with Employment Period and, unless the Company by terminates the Company for Cause or by Executive’s employment without Cause, during the Executive without Good Reason Severance Period (the "“Non-Competition compete Period"”), the Executive will shall not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to except as specifically provided in Section 2(c), engage or invest in, own, manage, operate, finance, guarantee control or provide participate in the ownership, management, operation, financing, or control of, be employed by, associated with, or in any manner connected with, lend any credit to, or render services or advice to, any business, firm, corporation, partnership, association, joint venture or other material assistance to entity that engages or conducts development of hemp-based consumer products; provided, however, that the Executive may own less than 5% in the aggregate of the outstanding shares of any Person class of securities of any enterprise (but without otherwise participating in the activities of such enterprise) including those engaged in the Triarco Business;
(iii) solicitcannabis or nutraceutical industries, contact or accept business of other than any client or counterparty whom such enterprise with which the Company served competes or conducted business with is currently engaged in a joint venture, if such securities are listed on any national or whose name became known regional securities exchange or have been registered under Section 12(b) or (g) of the Exchange Act. Notwithstanding the foregoing, if the Executive shall present to the Executive as a potential client or counterparty while in Board any opportunity within the employ scope of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with prohibited activities described above, and the Company at any time during shall not elect to pursue such opportunity within a reasonable time, then the Non-Competition Period Executive shall be permitted to terminate any written or oral agreement with pursue such opportunity, subject to the Companyrequirements of Section 2(b).
(b) The During the Employment Period and for a period of twelve (12) months following termination of the Executive’s employment with the Company, the Executive shall neithernot:
(i) persuade, either on solicit or hire, or attempt to recruit, persuade, solicit or hire, any employee, or independent contractor of, or consultant to, the Executive's own account Company, or its Affiliates, to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement; or
(ii) attempt in conjunction any manner to solicit or accept from any customer or client of the Company or any of its Affiliates, with whom the Company or any of its Affiliates had significant contact during the term of the Agreement, business of the kind or competitive with the business done by the Company or any of its Affiliates with such {00146430.5 / 0947-001} customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or is reasonably expected to do with the Company or any of its Affiliates or if any such customer elects to move its business to a person other than the Company or any of its Affiliates, provide any services (of the kind or competitive with the Business of the Company or any of its Affiliates) for such customer, or have any discussions regarding any such service with such customer, on behalf of any such other Person, solicit or entice away from person. The Executive recognizes and agrees that because a violation by the Executive of his obligations under this Section 7 will cause irreparable harm to the Company any officerthat would be difficult to quantify and for which money damages would be inadequate, employee or customer of the Company during shall have the term hereof right to injunctive relief to prevent or restrain any such violation, without the necessity of posting a bond. The Non-Competition compete Period nor engage, hire, employ, or induce will be extended by the employment duration of any such Person whether or not such officer, employee or customer would commit a breach of contract violation by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) his obligations under this Section 7. The Executive expressly agrees that the covenants contained in this Section 10 character, duration and scope of the covenant not to compete are reasonable covenants under in light of the circumstancescircumstances as they exist at the date upon which this Agreement has been executed. However, and further agrees that if in the opinion of should a determination nonetheless be made by a court of competent jurisdictionjurisdiction at a later date that the character, duration or geographical scope of the covenant not to compete is unreasonable in light of the circumstances as they then exist, then it is the intention of the Executive, on the one hand, and the Company, on the other, that the covenant not to compete shall be construed by the court in such restraint is not a manner as to impose only those restrictions on the conduct of the Executive which are reasonable in any respectlight of the circumstances as they then exist and necessary to assure the Company of the intended benefit of the covenant not to compete. In the event the Company has insufficient funds to operate and the Executive is terminated, such court shall have the right, power Non-compete Period and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amendedExecutive’s obligations under this Section 7 cease immediately.
Appears in 2 contracts
Samples: Employment Agreement, Employment Agreement (Peak Pharmaceuticals, Inc.)
Non-Competition; Non-Solicitation. (a) In consideration of this Agreement, the The Executive agrees that, for undertakes that during the period ending one year after the termination of the Executive's employment his/her engagement with the Company by and for a period of (12) months following termination of his/her engagement with the Company Company, for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will any reason:
2.1 He shall not, anywhere in the world, do business, as an employee, independent contractor, consultant or otherwise, and shall not directly or indirectly participate in or accept any position, proposal or job offer that may directly or indirectly compete with or harm the Company, or in the field in which the Company engages, is engaged or the Company contemplates in good faith to be materially engaged in within six (whether 6) months thereafter, provided that the Company has taken demonstrable actions to promote such engagement or that the Company’s Board of Directors has adopted a resolution authorizing such actions prior to the date of termination(the “Competitive Occupation”); provided, however, that Executive may own securities of any corporation which is engaged in such business and is publicly owned and traded but in an amount not to exceed at any one time one percent (1%) of any class of stock or securities of such company, so long as a sole proprietor, partner or venturer, stockholder, he has no active role in the publicly owned and traded company as director, officer, employee, consultant or in otherwise.
2.2 Without derogating from the generality of the foregoing, the Executive undertakes not to maintain any other capacity as principal or agent or through business relations of any Persontype whatsoever, subsidiary or employee acting as nominee or agent):
(i) including a proposal to conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any actionbusiness relations, directly or indirectly, to financewith any of the Company’s customers, guarantee suppliers or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicitagents, contact including customers, suppliers or accept business of any client or counterparty agents with whom the Company served conducted negotiations towards an agreement at the time of the termination of his/her employment with the Company or conducted business with or whose name became known to prior thereto.
2.3 In addition, the Executive as a potential client undertakes not to approach, solicit or counterparty while in the employ recruit any employee of the Company or during any consultant, service provider, agent, distributor, customer or supplier of the Non-Competition Period; or
(iv) influence Company, to terminate, reduce or attempt to influence any Person that is a contracting party with modify the Company at any time during the Non-Competition Period to terminate any written or oral agreement scope of such person’s engagement with the Company.
(b) 2.4 The foregoing shall apply irrespective of whether the Competitive Occupation is carried out by the Executive shall neither, either on the Executive's own account alone or in conjunction cooperation with or on behalf of any other Person, solicit or entice away from others and shall apply to the Company any officer, employee or customer participation of the Company during the term hereof or the Non-Competition Period nor engageExecutive in a Competitive Occupation, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in controlling shareholder or as an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Personinterested party.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 2 contracts
Samples: Employment Agreement (Oramed Pharmaceuticals Inc.), Employment Agreement (Oramed Pharmaceuticals Inc.)
Non-Competition; Non-Solicitation. (a) In The Executive acknowledges and agrees that the nature of the Confidential Information which the Company commits to provide him during his employment by the Company would make it difficult, if not impossible, for him to perform in a similar capacity for a Competing Business (as defined below) without disclosing or utilizing the Confidential Information. Further, the Executive acknowledges that the Company shall, during the time that the Executive is employed by Company, (a) disclose or entrust to the Executive, and provide the Executive access to, or place the Executive in a position to create or develop, trade secrets or Confidential Information belonging to the Company, (b) place the Executive in a position to develop business goodwill belonging to the Company and (c) disclose or entrust to the Executive business opportunities to be developed for the Company. Accordingly, in consideration of the foregoing, the Executive agrees that he will not (other than for the benefit of the Company pursuant to this Agreement) directly or indirectly, individually or on behalf of any other person, firm, corporation or other entity (whether as an officer, director, employee, shareholder, consultant, contractor, partner, joint venturer, agent, equity owner or in any capacity whatsoever) (1) during the term of Non-Competition (as defined below), carry on or engage in the business of developing and/or implementing drilling and completion techniques to oil-prone resources in previously discovered yet underdeveloped hydrocarbon trends or in any other business activity that the Company is conducting, or is intending to conduct, on the Date of Termination, in each case in the parishes within the State of Louisiana listed in Exhibit A to this Agreement, the Executive agrees thatState of Texas, for and any other geographical area in which the period ending one year after the termination Company conducts business and, as of the Date of Termination, was planning to conduct business and to which the Executive's employment with ’s duties as an employee of the Company related (a “Competing Business”), or (2) during the Term of Non-Solicitation (as defined below), (i) hire, attempt to hire, or contact or solicit with respect to hiring any employee, officer, or consultant of the Company, or (ii) solicit, divert or take away any customers, customer leads, or suppliers (as of the Date of Termination) of the Company. The “Term of Non-Competition” and the “Term of Non-Solicitation” shall be defined as that term beginning on the Effective Date and continuing until (x) if the Executive’s employment is terminated by reason of death or Disability, the Date of Termination, or (y) if the Executive’s employment is terminated by the Company for Cause or without Cause, or by the Executive for Good Reason or without Good Reason (the "Non-Competition Period")Reason, the Executive will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in date that is the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ one year anniversary of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the CompanyDate of Termination.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 2 contracts
Samples: Executive Employment Agreement (Midstates Petroleum Company, Inc.), Executive Employment Agreement (Midstates Petroleum Company, Inc.)
Non-Competition; Non-Solicitation. (ai) In consideration of this Agreement, the Executive agrees that, for the period ending one year after the termination of the During Executive's ’s employment with the Company by or its Affiliated Entities and for twenty-four (24) months following the Company termination thereof for Cause or by the Executive without Good Reason any reason (the "Non-Competition “Restricted Period"”), the Executive will shall not, within the Territory (as defined below) directly or indirectly (whether as a sole proprietorindirectly, partner own, manage, operate, control, consult with, be employed by, participate in the ownership, management, operation or venturercontrol of, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct otherwise render services to or engage in, any business engaged in or be interested in competitive with the businesses conducted by the Company or associated with any Person which conducts of its Affiliated Entities; provided, that the Executive’s ownership of securities of 2% or engages in the Triarco Business within the United States;less of any publicly traded class of securities of a public company shall not violate this paragraph.
(ii) take Throughout the Restricted Period, the Executive shall not solicit for business or accept the business of, any actionperson or entity who is, or was at any time within the previous twelve (12) months, a Customer (as defined below) of the Company or any of its Affiliated Entities.
(iii) Throughout the Restricted Period, the Executive shall not, directly or indirectly, to financeemploy, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact for employment, or accept business otherwise contract for or hire, the services of any client individual who is then an employee of or counterparty whom consultant to the Company served or conducted business with any of its Affiliated Entities or whose name became known to the Executive as a potential client or counterparty while in the employ who was an employee of the Company or any of its Affiliated Entities during the Non-Competition Period; ortwelve (12) month period preceding the termination of his employment.
(iv) influence Throughout the Restricted Period, the Executive shall not take any action that could reasonably be expected to have the effect of encouraging or attempt inducing any employee, consultant, representative, officer, or director of the Company or any of its Affiliated Entities to influence any Person that is a contracting party cease their relationship with the Company at or any time during the Non-Competition Period to terminate of its Affiliated Entities for any written or oral agreement with the Companyreason.
(bv) The For purposes of this Employment Agreement, the term “Territory” shall mean throughout the area comprising the Company’s or any of its Affiliated Entities, as applicable, market for its services and products within which area Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company was materially concerned during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
twelve (c12) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, month period prior to the extent that such interest does not exceed 5% termination of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other PersonExecutive’s employment.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 2 contracts
Samples: Employment Agreement (Novation Companies, Inc.), Employment Agreement (Novation Companies, Inc.)
Non-Competition; Non-Solicitation. (a) In consideration The Company shall provide Executive access to Confidential Information for use only during the Employment Period, and Executive acknowledges and agrees that the Company will be entrusting Executive, in Executive’s unique and special capacity, with developing the goodwill of the Company, and as an express incentive for the Company to enter into this Agreement and employ Executive hereunder, Executive has voluntarily agreed to the covenants set forth in this Section 10. Executive agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in all respects, do not interfere with public interests, will not cause Executive undue hardship, and are material and substantial parts of this AgreementAgreement intended and necessary to prevent unfair competition and to protect the Company’s Confidential Information, goodwill, customer relationships, and legitimate business interests.
(b) During the Prohibited Period, Executive agrees thatshall not, for without the period ending one year after the termination prior written approval of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will notBoard, directly or indirectly (whether as a sole proprietorindirectly, partner for Executive or venturer, stockholder, director, officer, employee, consultant on behalf of or in conjunction with any other capacity as principal person or agent or through entity of any Person, subsidiary or employee acting as nominee or agent):nature:
(i) conduct or engage in or be interested participate within the Market Area in competition with the Company in any aspect of the Business, which prohibition shall prevent Executive from directly or associated indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any Person which conducts or engages the Company in the Triarco 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 within in the United StatesMarket Area in competition, or anticipated competition, with the Company in any capacity (with respect to this clause (B)) in which Executive’s duties or responsibilities: (x) are the same as or similar to the duties or responsibilities that Executive had on behalf of the Company, (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 the Company, or (z) otherwise involve Executive having responsibilities with respect to the Business;
(ii) take appropriate any actionBusiness Opportunity of, directly or indirectlyrelating to, to finance, guarantee or provide any other material assistance to any Person engaged the Company located in the Triarco BusinessMarket Area;
(iii) solicit, contact canvass, approach, encourage, entice or accept business induce any customer or supplier of any client or counterparty whom the Company served with whom or conducted business with or whose name became known to the which Executive as a potential client or counterparty while in the employ had contact on behalf of the Company or during about whom or which Executive obtained Confidential Information in the Nonfinal twenty-Competition Periodfour (24) months of his employment with the Company to cease or lessen such customer’s or supplier’s business with the Company; or
(iv) influence solicit, canvass, approach, encourage, entice or attempt to influence induce any Person that is a contracting party with employee or contractor of the Company at any time during the Non-Competition Period to terminate any written his, her or oral agreement its employment or engagement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof For the avoidance of doubt, Section 10(b)(i)(B) above shall not prohibit prevent Executive, following the Executive Termination Date, from (i) having an equity interest being employed or engaged by a diversified entity that engages in the securities Business, so long as: (x) such entity’s revenues associated with that part of any entity engaged in the Triarco Business or any its business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, that relate to the extent that such interest does not exceed 5% of the outstanding equity interests Business are less than ten (10%) of such entity, ’s revenues; and (iiy) investing as a passive investor in an entity engaging in Executive’s direct and indirect responsibilities do not relate to the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other PersonBusiness.
(d) The Executive agrees that Because of the difficulty of measuring economic losses to the Company as a result of a breach or threatened breach of the covenants contained set forth in Section 9 and in this Section 10 are reasonable covenants under the circumstances10, and further agrees because of the immediate and irreparable damage that if may be caused to the Company for which they would have no other adequate remedy, the Company shall be entitled to seek to enforce the foregoing covenants, in the opinion 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 exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company at law and equity.
(e) 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 restraint is not reasonable in any respectrestrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, such court and this Agreement shall thereby be reformed.
(f) The following terms shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.following meanings:
Appears in 2 contracts
Samples: Employment Agreement (Wrap Technologies, Inc.), Employment Agreement (Wrap Technologies, Inc.)
Non-Competition; Non-Solicitation. (a) In consideration While Xx. Xxxx performs Consulting Services to the Company and for a period of this Agreement, the Executive agrees that, for the period ending one year after following the termination of the Executive's employment with the Company by his service to the Company for Cause any reason or by the Executive without Good Reason (the "Non-Competition Period")for no reason, the Executive he will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with without the prior written consent of the Company:
(i) For himself or on behalf of any other person or entity, serving directly or indirectly, either as principal, partner, stockholder, officer, director, member, employee, consultant, agent, representative or in any other capacity, own, manage, operate or control, or be concerned, connected or employed by, or otherwise associate in any manner with, engage in or have a director financial interest in, any business which is competitive with the business of the Company (each, a "RESTRICTED ACTIVITY") anywhere in the world, except that (A) nothing contained herein will preclude Xx. Xxxx from purchasing or owning securities of any such business if such securities are publicly traded, and provided that his holdings do not exceed one percent of the issued and outstanding securities of any class of securities of such business and (B) nothing contained herein will prohibit Xx. Xxxx from engaging in a Restricted Activity for or with respect to any subsidiary, division or affiliate or unit (each, a "UNIT") of an entity if that Unit is not engaged in any business which is competitive with the business of the Company, its Affiliates and Associates, irrespective of whether some other Unit of such entity engages in such competition (as long as Xx. Xxxx does not engage in a Restricted Activity for such other Unit); or
(ii) Either individually or on behalf of or through any third party, directly or indirectly, solicit, divert or appropriate or attempt to solicit, divert or appropriate, for the purpose of competing with the Company, any customers, licensors, licensees, collaborative partners, or other advisor patrons of the Company, or any such person or entity with respect to any other Person.which the Company has developed or made a presentation (or similar communication) with a view to developing a business relationship; or
(diii) The Executive agrees that Either individually or on behalf of or through any third party, directly or indirectly, (A) solicit, entice or persuade or attempt to solicit, entice or persuade any employee of or consultant to the covenants contained in this Section 10 are reasonable covenants under Company to leave the circumstancesservice of the Company for any reason, and further agrees that if in or (B) employ, cause to be employed, or solicit the opinion employment of, any employee of a court of competent jurisdiction, or consultant to the Company while any such restraint person is not reasonable in providing services to the Company or within six months after any respect, such court shall have person has ceased providing services to the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amendedCompany.
Appears in 2 contracts
Samples: Release Agreement (Synta Pharmaceuticals Corp), Agreement and Release (Synta Pharmaceuticals Corp)
Non-Competition; Non-Solicitation. (a) In consideration of this Agreement, the Executive agrees that, for During the period ending beginning on the “Effective Date,” as that term is defined in the Transitional Compensation Agreement of even date herewith, and continuing while Executive is serving as an executive officer of the Company and for one year following the termination of Executive’s employment with the Company, any successor thereto, and its or their subsidiaries (the “Noncompetition Period”), if such termination of employment occurs within one year after the termination Effective Date and Executive becomes entitled to receive the “Non-Compete Payment” as defined in Section 5 of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period")Transitional Compensation Agreement, the Executive will not, within fifty (50) miles of the Company’s headquarters in Rockford, Illinois as of the Effective Date, engage in “Competition” with the Company. For purposes of this Confidentiality and Non-Competition Agreement, Competition by Executive shall mean Executive’s:
(i) engaging in, including without limitation consulting or start-up activities for Executive’s own account or any third party, the business of commercial banking (including trust and asset management and mortgage banking); or
(ii) becoming interested in, or otherwise directly or indirectly (whether being employed by or acting as a sole proprietorconsultant or lender to, partner or venturerrender any services to, stockholder, or being a director, officer, employee, consultant principal, agent, stockholder, manager, member, owner or partner of, employer of, or permitting his name to be used in connection with the activities of any other business or organization (a “Competing Business”) which engages in, or is preparing to engage in, the business of commercial banking (including trust and asset management and mortgage banking); provided, however, that, notwithstanding the foregoing, it shall not be a violation of this Section 2(a) for Executive to become the registered or beneficial owner of up to two(2%) percent of any class of the capital stock of a Competing Business registered under the Securities Exchange Act of 1934, as amended, provided that Executive does not otherwise participate in the business of such corporation.
(b) during the Noncompetition Period, Executive will not in any other capacity as principal manner, directly or agent or through any Person, subsidiary or employee acting as nominee or agent):indirectly:
(i) conduct solicit (or engage in cause, or authorize, to be interested in solicited), divert or associated otherwise attempt to obtain the business of any person who is, or has at any time within three years prior to the date of such action been, a customer, supplier, licensee or business relation of the Company for any purpose which is competitive with any Person which conducts or engages in the Triarco Business within the United StatesCompany’s business;
(ii) take intentionally disturb or attempt to disturb in any action, directly or indirectly, to finance, guarantee or provide adverse respect any other material assistance to business relationship between any Person engaged in person and the Triarco BusinessCompany;
(iii) solicit, contact or accept business of solicit from any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ customer of the Company Company, or from any known potential customer of the Company, business which has been the subject of a known written or oral bid, offer or proposal by the Company, or of substantial preparation with a view to making such a bid, proposal or offer, in any case, during the Nontwo-Competition Period; oryear period immediately preceding the termination for any reason whatsoever of his service with the Company;
(iv) influence seek or attempt to influence persuade, induce or encourage any Person that is a contracting party with director, officer, employee, consultant, advisor or other agent of the Company to discontinue his or her status or employment therewith or to become employed or otherwise engaged in a Competing Business; and
(v) solicit or employ, or otherwise hire or engage as an employee, independent contractor, consultant, advisor or otherwise, any person at any time during within 12 months following the Non-Competition Period to terminate any written date of cessation of employment of such person or oral agreement the termination of such person’s other status, as the case may be, with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 2 contracts
Samples: Transitional Compensation Agreement (Amcore Financial Inc), Transitional Compensation Agreement (Amcore Financial Inc)
Non-Competition; Non-Solicitation. (a) In view of the unique and valuable services it is expected Executive will render to the Company, Executive’s knowledge of the customers, trade secrets, and other proprietary information relating to the business of the Company and its customers and suppliers and similar knowledge regarding the Company it is expected Executive will obtain, and in consideration of this Agreementthe compensation to be received hereunder, the Executive agrees thatthat he will not, for during the period ending he is employed by the Company under this Agreement or otherwise, and for a period of one year after he ceases to be employed by the termination Company under this Agreement or otherwise, compete with or be engaged in, or Participate In (as defined below) any other business or organization (which shall not include a university, hospital, or other non-profit organization) which during such one year period is or as a result of the Executive's employment ’s engagement or participation would become competitive with the Company Company’s business of designing, developing, manufacturing, marketing and selling septal repair devices or other medical devices being designed, developed, manufactured, marketed or sold by the Company for Cause or up to the time of such cessation; provided, however, that the provisions of this Section 8 shall not be deemed breached merely because the Executive owns less than 1% of the outstanding capital stock of a corporation, if, at the time of its acquisition by the Executive without Good Reason such stock is listed on a national securities exchange. The term “Participate In” shall mean: “directly or indirectly, for his own benefit or for, with or through any other person (including the "Non-Competition Period"Executive’s immediate family), firm or corporation, own, manage, operate, control, loan money to, or participate in the ownership, management, operation or control of, or be connected as a director, officer, employee, partner, consultant, agent, independent contractor, or otherwise with, or acquiesce in the use of his name in.” The Executive will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or interfere with, or endeavor to entice away from the Company any officerof its suppliers, customers or employees within a period of one year after the date of termination of the Executive’s employment (the “Termination Date”). The Executive will not directly or indirectly employ any person who was an employee or customer of the Company during within a period of one year after such person leaves the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent employ of the Company, serving as a director or other advisor to . If any other Person.
(d) The Executive agrees that the covenants restriction contained in this Section 10 are reasonable covenants under 8 shall be deemed to be invalid, illegal, or unenforceable by reason of the circumstancesextent, and further agrees that if in duration or geographical scope thereof, or otherwise, then the opinion of a court of competent jurisdiction, making such restraint is not reasonable in any respect, such court determination shall have the rightright to reduce such extent, power duration, geographical scope or other provisions hereof, and authority to excise or modify in its reduced form such provision or provisions of these covenants which as to such court restriction shall appear not reasonable and to enforce then be enforceable in the remainder thereof as so amendedmanner contemplated hereby.
Appears in 2 contracts
Samples: Employment Agreement (NMT Medical Inc), Employment Agreement (NMT Medical Inc)
Non-Competition; Non-Solicitation. (ai) In consideration of this Agreement, the Executive agrees that, for During the period beginning on the Effective Date and ending one year after [ ](1) months following the termination of date on which the Executive's ’s employment with the Company by the Company is terminated for Cause or by the Executive without Good Reason any reason (the "later being referred to herein as the “Non-Competition Compete Period"”), the Executive will notcovenants and agrees not to, and shall cause his affiliates not to, directly or indirectly anywhere in [SPECIFY GEOGRAPHICAL SCOPE], conduct, manage, operate, engage in or have an ownership interest in any business or enterprise that (whether A) [SPECIFY SCOPE OF BUSINESS], (B) uses any trademarks, tradenames or slogans similar to those of the Company or its affiliates; or (C) is engaged in any other activities that are otherwise competitive with the business of the Company or its affiliates as conducted or proposed to be conducted as of the Termination Date (collectively, the “Business”). Notwithstanding the foregoing, nothing herein shall preclude the Executive from performing any duties as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal agent of Company or agent its affiliates or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any actionowning, directly or indirectly, in the aggregate
(1) Typically equal to financethe severance period. less than 5% of any business competitive with the Company or its affiliates that is subject to the reporting obligations of the Securities Exchange Act of 1934, guarantee as amended.
(ii) During the Non-Compete Period, the Executive shall not, and shall cause his affiliates to not, directly or provide indirectly, call-on, solicit or induce any customer or other business relationship of the Company or its affiliates for the provision of products or services related to the business of the Company or in any other material assistance to any Person engaged in manner that would otherwise interfere with the Triarco Business;business relationship between the Company and its affiliates and their respective customers and other business relationships.
(iii) solicitDuring the Non-Compete Period, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client shall not, and shall cause his affiliates to not, directly or counterparty while in the employ indirectly, call-on, solicit or induce, any employee of the Company or during its affiliates to leave the Non-Competition Period; or
(iv) influence employ of, or attempt to influence any Person that is a contracting party with terminate its relationship with, the Company or its affiliates for any reason whatsoever, nor shall the Executive offer or provide employment (whether such employment is for the Executive or any other business or enterprise), either on a full-time, part-time or consulting basis, to any person who then currently is, or within six (6) months immediately prior thereto was, an employee or independent contractor of the Company; provided, however, the foregoing shall not prohibit a general solicitation to the public through general advertising or similar methods of solicitation not specifically directed at any time during the Non-Competition Period to terminate any written or oral agreement with employees of the Company.
(biv) The Executive acknowledges and agrees that the provisions of this Section 8 are reasonable and necessary to protect the legitimate business interests of the Company and its affiliates. The Executive shall neithernot contest that the Company’s and the Company’s affiliates’ remedies at law for any breach or threat of breach by the Executive or any of his or her affiliates of the provisions of this Section 8 will be inadequate, either on and that the Executive's own account Company and its affiliates shall be entitled to an injunction or injunctions to prevent breaches of the provisions of this Section 8 and to enforce specifically such terms and provisions, in conjunction with addition to any other remedy to which the Company or on behalf its affiliates may be entitled at law or equity. The restrictive covenants contained in this Section 8 are covenants independent of any other Person, solicit provision of this Agreement or entice away from any other agreement between the parties hereunder and the existence of any claim which the Executive may allege against the Company under any officer, employee other provision of this Agreement or customer any other agreement will not prevent the enforcement of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring businessthese covenants.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(dv) The Executive agrees expressly acknowledges that the covenants contained in this Section 10 8(b) are reasonable covenants under a material part of the circumstancesconsideration bargained for by the Company and, without the agreement of the Executive to be bound by such covenants, the Company would not have agreed to enter into this Agreement.
(vi) If any of the provisions contained in this Section 8(b) shall for any reason be held to be excessively broad as to duration, scope, activity or subject, then such provision shall be construed by limiting and further agrees that if in reducing it, so as to be valid and enforceable to the opinion of maximum extent compatible with the applicable law or the determination by a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 2 contracts
Samples: Employment Agreement (Egalet Corp), Employment Agreement (Egalet Corp)
Non-Competition; Non-Solicitation. (a) In consideration of this Agreement, the Executive agrees that, for During the period ending beginning on the “Effective Date,” as that term is defined in the Transitional Compensation Agreement of even date herewith, and continuing while Executive is serving as an executive officer of the Company and for one year following the termination of Executive’s employment with the Company, any successor thereto, and its or their subsidiaries (the “Noncompetition Period”), if such termination of employment occurs within one year after the termination Effective Date and Executive becomes entitled to receive the “Non-Compete Payment” as defined in Section 5 of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period")Transitional Compensation Agreement, the Executive will not, within fifty (50) miles of the Company’s headquarters in Rockford, Illinois or within twenty-five (25) miles of any office or branch location in which the Company was conducting business as of the Effective Date, engage in “Competition” with the Company. For purposes of this Confidentiality and Non-Competition Agreement, Competition by Executive shall mean Executive’s:
(i) engaging in, including without limitation consulting or start-up activities for Executive’s own account or any third party, the business of commercial banking (including trust and asset management and mortgage banking); or
(ii) becoming interested in, or otherwise directly or indirectly (whether being employed by or acting as a sole proprietorconsultant or lender to, partner or venturerrender any services to, stockholder, or being a director, officer, employee, consultant principal, agent, stockholder, manager, member, owner or partner of, employer of, or permitting her name to be used in connection with the activities of any other business or organization (a “Competing Business”) which engages in, or is preparing to engage in, the business of commercial banking (including trust and asset management and mortgage banking); provided, however, that, notwithstanding the foregoing, it shall not be a violation of this Section 2(a) for Executive to become the registered or beneficial owner of up to two (2%) percent of any class of the capital stock of a Competing Business registered under the Securities Exchange Act of 1934, as amended, provided that Executive does not otherwise participate in the business of such corporation.
(b) during the Noncompetition Period, Executive will not in any other capacity as principal manner, directly or agent or through any Person, subsidiary or employee acting as nominee or agent):indirectly:
(i) conduct solicit (or engage in cause, or authorize, to be interested in solicited), divert or associated otherwise attempt to obtain the business of any person who is, or has at any time within three years prior to the date of such action been, a customer, supplier, licensee or business relation of the Company for any purpose which is competitive with any Person which conducts or engages in the Triarco Business within the United StatesCompany’s business;
(ii) take intentionally disturb or attempt to disturb in any action, directly or indirectly, to finance, guarantee or provide adverse respect any other material assistance to business relationship between any Person engaged in person and the Triarco BusinessCompany;
(iii) solicit, contact or accept business of solicit from any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ customer of the Company Company, or from any known potential customer of the Company, business which has been the subject of a known written or oral bid, offer or proposal by the Company, or of substantial preparation with a view to making such a bid, proposal or offer, in any case, during the Nontwo-Competition Period; oryear period immediately preceding the termination for any reason whatsoever of her service with the Company;
(iv) influence seek or attempt to influence persuade, induce or encourage any Person that is a contracting party with director, officer, employee, consultant, advisor or other agent of the Company to discontinue her or her status or employment therewith or to become employed or otherwise engaged in a Competing Business; and
(v) solicit or employ, or otherwise hire or engage as an employee, independent contractor, consultant, advisor or otherwise, any person at any time during within 12 months following the Non-Competition Period to terminate any written date of cessation of employment of such person or oral agreement the termination of such person’s other status, as the case may be, with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 2 contracts
Samples: Transitional Compensation Agreement (Amcore Financial Inc), Transitional Compensation Agreement (Amcore Financial Inc)
Non-Competition; Non-Solicitation. (a) In consideration From the Effective Date until the Date of Termination and for a period of one year after the Date of Termination (the “Restricted Period”), Executive shall not directly or indirectly, individually or on behalf of any person other than the Company,
(1) own, operate, manage or otherwise engage in a Competitive Business or enter the employ of, or render any services to, any Competitive Business (or any division thereof). For purposes of this Agreement, “Competitive Business” means any individual, corporation, partnership, limited liability company, business or other entity, whether for profit or not-for-profit, which engages or attempts to engage, in the Executive agrees thatoperation, for the period ending one year after the termination management, or ownership of the Executive's employment with the Company by the Company for Cause any business or by the Executive without Good Reason (the "Non-Competition Period")other endeavor, the Executive will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal way similar or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known identical to the Executive as a potential client business, operations, or counterparty while in the employ of services that the Company or during the Non-Competition Period; or
(iv) influence any of its affiliates currently, or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period Term, operates, manages, owns or provides, or has specific plans to terminate do so; provided, however, that the term “Competing Business” shall exclude Executive’s ownership of up to five percent (5%) of the securities of a company publicly traded on a national securities exchange acquired in open market transactions;
(2) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the Effective Date) between the Company or any written of its affiliates and customers, clients, suppliers partners, members or oral agreement investors of the Company or any of its affiliates of which it is reasonable to expect that Executive is aware; or
(3) aid or endeavor to solicit or induce any of the Company’s or its affiliates’ employees to leave their employment with the CompanyCompany or such affiliates in order to accept employment with Executive or any other person, corporation, limited liability company, partnership, sole proprietorship or other entity; provided, however, that nothing in this Section 13(a)(3) shall prevent Executive from soliciting any person who responds to a general media advertisement or solicitation.
(b) The Executive shall neither, either on If the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) The Executive agrees that the covenants contained restrictions set forth in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of section would otherwise be determined to be invalid or unenforceable by a court of competent jurisdiction, such restraint is not reasonable in any respect, the parties intend and agree that such court shall have exercise its discretion in reforming the right, power and authority to excise or modify such provision or provisions of these covenants this Agreement to the end that the Executive will be subject to a non-competition or non-solicitation covenant, as applicable, which is reasonable under the circumstances and enforceable by the Company. It is agreed that no adequate remedy at law exists for the parties for violation of this section and that this section may be enforced by any equitable remedy, including specific performance and injunction, without limiting the right of the Company to proceed at law to obtain such relief as may be available to such court it. The running of the Restricted Period shall appear not reasonable and to enforce the remainder thereof as so amendedbe tolled for any period of time during which Executive is in violation of any covenant contained herein, for any reason whatsoever. This Section 13 shall survive this Agreement.
Appears in 2 contracts
Samples: Employment Agreement (Kindred Healthcare, Inc), Employment Agreement (Kindred Healthcare, Inc)
Non-Competition; Non-Solicitation. (a) In consideration of this Agreement, The Executive acknowledges (i) that in the Executive agrees that, for the period ending one year after the termination course of the Executive's ’s employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will notbecome familiar with trade secrets and customer lists of, directly or indirectly (whether as a sole proprietorand other confidential information concerning, partner or venturerthe Company and its Affiliates, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
customers and clients and (ii) take any actionthat the Executive’s services will be of special, directly or indirectly, unique and extraordinary value to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neitheragrees that, either on during the Employment Term and for a period of one year following the Executive's own account or in conjunction with or on behalf ’s termination of employment for any other Person, solicit or entice away from reason (the Company any officer, employee or customer of the Company during the term hereof or the “Non-Competition Period nor engagePeriod”), hirethe Executive shall not in any manner, employdirectly or indirectly, alone or through any person, firm, corporation or enterprise or as a member of a partnership or as an officer, director, stockholder, investor or employee of or advisor or consultant to any person, firm, corporation or enterprise or otherwise, engage or be engaged, or induce assist any other person, firm, corporation or enterprise in engaging or being engaged (collectively, the employment “Restricted Activity”) in any Competitive Activity (as defined below). For the purposes of this Section 12, a “Competitive Activity” shall mean, unless otherwise determined by the Board, a business that (i) is being conducted by the Company or any Affiliate at the time in question and (ii) was being conducted, or was under active consideration to be conducted, by the Company or any Affiliate, at the date of the termination of the Executive’s employment. It is agreed and understood that the prohibitions provided for in this Section 12(b) shall not restrict the Executive from (x) engaging in Restricted Activity for any subsidiary, division or Affiliate or unit of a company (collectively a “Related Entity”) if that Related Entity is not engaged in a Competitive Activity, irrespective of whether some other Related Entity of that company engages in what would otherwise be considered to be a Competitive Activity (as long as Executive does not engage in Restricted Activity for such Person whether other Related Entity); or (y) providing services to a business that is engaged in a Competitive Activity determined with respect to the Company generally but not such officerwith respect to the NeuroCare division of the Company, employee or customer would commit a breach of contract as determined by reason of leaving service or transferring businessthe Company in its reasonable discretion.
(c) The restrictive provisions hereof Executive further agrees that during the Non-Competition Period the Executive shall not prohibit the Executive from (i) having an equity interest in the securities any manner, directly or indirectly, solicit or recruit (or attempt to solicit or recruit) any employee of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential advisor or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, consultant to the extent Company or its Affiliates to terminate such person’s employment or advisor or consultant relationship with the Company or its Affiliates, work for a person other than the Company or its Affiliates, work as an independent contractor, or engage in any activity that would cause any such interest does not exceed 5% of employee, advisor or consultant to violate any agreement with the outstanding equity interests of such entity, Company or its Affiliates; (ii) investing as a passive investor in an entity engaging any manner, directly or indirectly, hire or cause to be hired any employee of or advisor or consultant to the Company or any of its Affiliates for any purpose or in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity any capacity whatsoever; or (iii) in connection with the prior written consent any business to which Section 12(b) applies, call on, service, solicit or otherwise do business with any customer of the CompanyCompany or any of its Affiliates; provided, serving as a director however, that the restriction contained in clause (iii) of this Section 12(c) shall not apply to, or other advisor to any other Personinterfere with, the proper performance by the Executive of the duties and responsibilities under Section 3 of this Agreement.
(d) The Executive agrees that the covenants contained Nothing in this Section 10 are reasonable covenants under 12 shall prohibit the circumstancesExecutive from being a passive owner of not more than two percent (2%) of the outstanding common stock, capital stock and further agrees that if equity of any firm, corporation or enterprise so long as the Executive has no active participation in the opinion management or business of such firm, corporation or enterprise.
(e) If the restrictions stated herein are found by a court of competent jurisdictionto be unreasonable, the parties hereto agree that the maximum period, scope or geographical area reasonable under such restraint is not reasonable in any respectcircumstances shall be substituted for the stated period, such scope or area and that the court shall have revise the rightrestrictions contained herein to cover the maximum period, power scope and authority area permitted by law.
(f) If the Executive violates any provision of Section 12, the restrictions of the applicable provision shall continue to excise or modify apply for an additional period of one year after the date of such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amendedviolation.
Appears in 2 contracts
Samples: Employment Agreement (Viasys Healthcare Inc), Employment Agreement (Viasys Healthcare Inc)
Non-Competition; Non-Solicitation. (a) In consideration For a period of this Agreementthree (3) years commencing on the Closing Date, the Executive agrees that, for the period ending one year after the termination of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any actionneither Seller will, directly or indirectly, to finance(i) engage in or assist others in engaging in any Competitive Activity; (ii) have an interest in any Competitor in any capacity, guarantee including as a partner, stockholder, member, principal, agent, trustee or provide any other material assistance to any Person engaged in the Triarco Business;
consultant; or (iii) solicitintentionally interfere in any material respect with the business relationships between Buyer and customers or suppliers of the Mediasite Business as of the date of this Agreement. Notwithstanding the foregoing, contact either Seller may (x) own, directly or accept business indirectly, solely as an investment, securities of any client Person traded on any national securities exchange if such Seller is not a controlling Person of, or counterparty whom a member of a group which controls, such Person and does not, directly or indirectly, own 5% or more of any class of securities of such Person, and (y) continue to conduct the Company served or conducted Retained Business, including using the Customer List to solicit business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence long as no such business involves any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the CompanyCompetitive Activity.
(b) The Executive shall neither, either For a period of three (3) years commencing on the Executive's own account Closing Date, neither Seller will, directly or in conjunction indirectly, hire or solicit any Transferred Employee who was hired by Buyer or any independent contractor engaged by Bxxxx or encourage any Transferred Employee or independent contractor to leave his or her employment or service relationship with or on behalf Buyer without the written consent of Buyer; provided that (i) the foregoing shall not apply to any other Person, solicit or entice away from the Company any officer, such employee or customer independent contractor who was not employed or engaged by Buyer or any of its Subsidiaries (including the Company during Transferred Companies) for at least a 12 month period immediately prior to the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment commencement of any such Person whether solicitation and (ii) the prohibition on solicitation (but not hiring) shall not apply to any generalized searches for employees by use of advertisements in the media which are not targeted at employees of Buyer or not such officerany of its Subsidiaries (including the Transferred Companies). For the avoidance of doubt, employee nothing contained herein shall prohibit or customer would commit a breach otherwise restrict Sellers from soliciting, hiring or engaging any Transferred Employee or independent contractor whose service relationship with Buyer or any of contract its Subsidiaries is terminated by reason Buyer or any of leaving service or transferring businessits Subsidiaries.
(c) The restrictive provisions hereof shall covenants and undertakings contained in this Section 8.3 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 8.3 will cause irreparable injury to Buyer, the amount of which may be impossible to estimate or determine and which cannot prohibit be adequately compensated. Accordingly, the Executive remedy at law for any breach of this Section 8.3 will be inadequate, and Buyer will be entitled to an injunction, restraining order or other equitable relief from (i) having an equity interest any court of competent jurisdiction in the securities event of any entity engaged breach of this Section 8.3 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 8.3 are cumulative and in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor addition to any other Personrights and remedies which Bxxxx may have hereunder or at law or in equity.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstancesparties agree that, and further agrees that if in the opinion of a any court of competent jurisdictionjurisdiction in a final nonappealable judgment determines that a specified time period, such restraint a specified geographical area, a specified business limitation or any other relevant feature of this Section 8.3 is not reasonable in any respectunreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court shall have to be reasonable, not arbitrary and not against public policy may be enforced against the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amendedapplicable party.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement (Sonic Foundry Inc), Stock and Asset Purchase Agreement (Sonic Foundry Inc)
Non-Competition; Non-Solicitation. (a) In consideration of this Agreement, the Executive agrees You acknowledge that, for in the period ending one year after the termination course of the Executive's your employment with the Company, you will become familiar with the Company’s and the Company Affiliates’ trade secrets and other Confidential Information 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 and any other period during which you are employed by the Company for Cause or by the Executive without Good Reason any of its Affiliates, whether pursuant to this letter agreement or otherwise, plus an additional six (6) months after your separation (the "Non-Competition “Restriction Period"”) (regardless of the reason for your separation from the Company and whether caused by you or the Company), you will not (x) in the Executive will not, directly United States or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity country where, as principal of the time at issue, the Company or agent any of the Company Affiliates conducts business or through (y) anywhere else that, during the then prior two-year period, the Company or any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage of the Company Affiliates has spent time and resources in or be interested in or associated connection with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any actionexpanding its business, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's your own account or in conjunction with behalf or on behalf of any other Personperson, solicit firm or entice away from entity: engage in, or own, manage, operate, work as an 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 (i) electric vehicle charging, broadband or electrical contracting infrastructure or (ii) such other business in which the Company or any officer, employee or customer Company Affiliates with which you worked was engaged at any time during the then immediately prior two years.
(b) Nothing in Section 9(a) will prohibit you from being a passive owner of not more than 2% of the Company during outstanding stock of a publicly-traded corporation, so long as you have no active participation in the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment business of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring businesscorporation.
(c) The restrictive provisions hereof shall not prohibit During the Executive from Restriction Period, you also will not:
(i) having an equity interest in induce or attempt to induce any customer, supplier or other business relation of the securities of any entity engaged in the Triarco Business Company or any of the Company Affiliates to cease doing business with respect to which the Executive obtained confidential Company or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% any of the outstanding equity interests Company Affiliates, or in any way interfere with the relationship between any such customer, supplier or business relation, on the one hand, and the Company or any of such entitythe Company Affiliates, on the other hand;
(ii) investing as engage, employ, solicit or contact with a passive investor in an entity engaging in view to the Triarco Business that is not so listed engagement or tradedemployment of, so long as such interest does not exceed 5% any employee, officer or manager of, or full-time consultant to, the Company or any of the outstanding equity interests Company Affiliates with which you worked or any person who has been an employee, officer or manager of, or consultant to, the Company or any of the Company Affiliates with which you worked, if he or she has been in such entity or a role at any time within the then immediately prior three months; or
(iii) with the prior written consent of the Company, serving as a director assist any individual or other advisor entity to any other Person.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if engage in the opinion of a court of competent jurisdiction, such restraint is not reasonable conduct referenced in any respect, such court shall have the right, power clauses (i) and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended(ii) immediately above.
Appears in 2 contracts
Samples: Employment Agreement (Charge Enterprises, Inc.), Employment Agreement (Charge Enterprises, Inc.)
Non-Competition; Non-Solicitation. (a) In consideration of this AgreementDuring the Restricted Period, ETH and its direct and indirect Subsidiaries (collectively, the Executive agrees that, for the period ending one year after the termination of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will “Restricted Parties”) shall not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to financeexcept with Buyer’s prior written consent, guarantee (i) engage in or provide any other material assistance to any Person engaged assist others in engaging in the Triarco business of the Companies or the Company Subsidiaries, including the Business;
; (ii) own, manage, operate, control, or participate in the ownership, management, operation or control of any business that, directly or indirectly, competes with the Business; or (iii) solicitsolicit any customer of the Companies or the Company Subsidiaries to purchase any goods or services sold by the Companies or the Company Subsidiaries as of the Closing Date from any Person other than Buyer, contact the Companies or accept the Company Subsidiaries. Notwithstanding the foregoing, nothing contained in the first sentence of this Section 6.7(a) shall be construed as precluding any Restricted Party from owning, directly or indirectly, less than 5% of the outstanding equity securities of a publicly-held corporation engaged, directly or indirectly, in the business of any client the Companies or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the CompanySubsidiaries.
(b) The Executive During the Restricted Period, the Restricted Parties shall neithernot, either on except with Buyer’s prior written consent, directly or indirectly, hire or solicit any director, officer or employee of the Executive's own account Companies or in conjunction with or on behalf of any other Person, solicit or entice away from the Company Subsidiaries or encourage any officersuch director, officer or employee to leave such employment; provided, however, that general solicitations not directed specifically to any such directors, officers or customer of employees shall not be a breach hereof; provided, further, that nothing in this Section 6.7(b) shall prevent any Restricted Party from hiring or soliciting any director, officer or employee that was terminated by the Companies or the Company during the term hereof Subsidiaries more than twelve (12) months prior to such hiring or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring businesssolicitation.
(c) The restrictive provisions hereof Restricted Parties shall not make, or cause to be made, to any Person any disparaging statement about the Business, the Companies, the Company Subsidiaries, Buyer or any of Buyer’s Affiliates or Representatives (including with respect to the products, services, employees or directors of any such Person) that would or would reasonably be expected to adversely impact the goodwill, reputation or business relationships thereof in any material respect; provided, that this Section 6.7(c) shall not prohibit the Executive from making of truthful statements required by Law, governmental testimony or filings, or administrative, arbitral or similar legal proceedings (iincluding depositions in connection with such proceedings), or in connection with the enforcement (or defense) having an equity interest in the securities of any entity engaged in rights or pursuit of any remedies relating to this Agreement or the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Persontransactions contemplated hereby.
(d) The Executive Each Seller hereby acknowledges that, except for the Sellers’ willingness to comply with the terms of this Section 6.7 (and to cause the compliance with such terms by the other Restricted Parties), Buyer would not have entered into this Agreement and that a violation of this Section 6.7 will cause Buyer irreparable harm which would not be adequately compensated for by money damages. Each Seller therefore agrees that, in the event of any actual or threatened violation of this Section 6.7, Buyer shall be entitled to a temporary restraining order and to preliminary and final injunctive relief against the applicable Seller or other Restricted Party to prevent any violations of this Section 6.7 (without the necessity of posting a bond) and to recover its reasonable attorneys’ fees and any other costs and expenses incurred in the enforcement of this Section 6.7; provided, that it is acknowledged and agreed that the covenants contained rights and remedies provided under this Section 6.7(d) are cumulative and in addition to any other rights and remedies that Buyer may have hereunder or at law or in equity. It is the intent and understanding of each party that if, in any action before any court or agency legally empowered to enforce this Section 6.7, any term, restriction, covenant or promise in this Section 10 are reasonable covenants under 6.7 is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, extent necessary to make it enforceable by such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amendedagency.
Appears in 2 contracts
Samples: Equity Purchase Agreement (Esco Technologies Inc), Equity Purchase Agreement (Sonoco Products Co)
Non-Competition; Non-Solicitation. (a) In As an inducement for Buyer to enter into this Agreement and as additional consideration of for the consideration to be paid to Seller under this Agreement, during the Executive agrees that, for the period ending one year after the termination of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason Restricted Period (the "Non-Competition Period"defined below), the Executive Seller will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in nor will Seller allow any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any actionof its respective Affiliates to, directly or indirectly, to financeengage in, guarantee acquire, participate in, assist, provide services to, own or provide any other material assistance to any Person engaged hold a business in the Triarco Business;
Restricted Area (iiidefined below) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party competes with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the CompanyBusiness.
(b) The Executive shall neitherDuring the Restricted Period, either on Seller will not, nor will Seller allow its respective Affiliates to, without the Executive's own account prior written consent of Buyer, directly or in conjunction indirectly, (i) hire or attempt to hire away any employee of Buyer or any of its subsidiaries or the Business or persuade any such employee to leave employment with Buyer or on behalf the Business; (ii) solicit, divert, or take away, or attempt to solicit, divert or take away, the business of any other PersonPerson with whom Buyer or the Business has established, solicit or entice away from the Company any officer, employee are actively seeking to establish a business or customer relationship with respect to competing services or products; (iii) accept the business or customer relationship of the Company during the term hereof any Person with whom Buyer or the Non-Competition Period nor engage, hire, employBusiness has established, or induce the employment of any such Person whether or not such officerare actively seeking to establish, employee a business or customer would commit a breach relationship with respect to competing services or products; or (iv) solicit, induce or attempt to induce any salesperson, distributor, supplier, vendor, manufacturer, representative, agent, jobber or other person transacting business with Buyer or the Business to terminate their relationship or association with Buyer or the Business, or to represent, distribute or sell services or products in competition with the business of contract by reason of leaving service Buyer or transferring businessthe Business.
(c) The restrictive Seller acknowledges that because a remedy at law for any violation or breach of the provisions hereof shall not prohibit the Executive from (i) having an equity interest of this Section 10.2 may be inadequate, in the securities addition to any relief at law that may be available to Buyer for such violation or breach and regardless of any entity engaged other provision contained in the Triarco Business this Agreement, Buyer will be entitled to injunctive and other equitable relief restraining such violation or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Personbreach.
(d) The Executive agrees For purposes of this Section, (i) “Restricted Period” means the period commencing on the Closing Date and continuing until the 5th anniversary of the Closing Date, provided that the covenants contained period will be extended to include any period in which Seller is not in compliance with the terms of this Section 10 are reasonable covenants under the circumstancesSection, and further agrees that if (ii) “Restricted Area” means any state in which Buyer conducts the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have Business during the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amendedRestricted Period.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Calibrus, Inc.), Asset Purchase Agreement (Calibrus, Inc.)
Non-Competition; Non-Solicitation. (a) In consideration of this Agreement, the Executive agrees that, for During the period beginning on the Closing Date and ending one year after on the termination fifth anniversary of the Executive's employment with Closing Date, neither the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive Sellers nor any of their Affiliates will not, directly or indirectly (whether as a sole proprietorown, partner manage, operate, control, engage in or venturerparticipate in the ownership, stockholdermanagement, director, officer, employee, consultant operation or control of any Protected Business Line in any other capacity as principal the Territory; provided that nothing in this Agreement shall prohibit the Sellers or agent or through any Person, subsidiary or employee acting as nominee or agent):
their Affiliates from (i) conduct acquiring or engage holding shares of capital stock or a partnership or other equity interest in or be interested in or associated with any Person which conducts or that engages in a Protected Business Line in the Triarco Business within Territory where such shares or interest represent no more than 10% of the United States;
outstanding voting power in such Person; (ii) take any actionacquiring (whether by merger, directly consolidation, stock or indirectly, to finance, guarantee asset purchase or provide any other material assistance to similar transaction) all or substantially all of the business of any Person engaged whose principal business is not a Protected Business Line but that engages in a Protected Business Line within the Triarco Business;
Territory, provided, however, within 15 months after its acquisition, the Sellers or their Affiliates shall use commercially reasonable efforts to sell that portion of the business of such Person that is then operating as a Protected Business Line within the Territory if such portion represents in excess of 10% such Person’s business; (iii) solicit, contact marketing or accept business of any client selling its own products or counterparty whom the Company served services that are not within a Protected Business Line; or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence owning or attempt to influence operating any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the CompanyActive Business Line.
(b) The Executive shall neitherFor a period of three years following the date hereof, either on neither the Executive's own account Sellers nor any of their Affiliates will, (i) except in connection with owning or in conjunction with or on behalf of any other Personoperating an Active Business Line, solicit or entice away from the Company any officer, employee or customer attempt to solicit Persons who are customers of the Company during Business at the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment Closing to be customers of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Protected Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, Line; (ii) investing as a passive investor in an entity engaging in the Triarco Business that is hire any Transferred Employee, other than any Transferred Employee terminated by Buyer not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or for cause; (iii) with the prior written consent solicit or induce, or attempt to solicit or induce, any Transferred Employee, consultant, adviser or independent contractor of the CompanyBusiness at the Closing to leave the employ of, serving as a director or cease providing services to, Buyer or its Affiliates (except for any general solicitation through any general advertising medium not directed at any of the foregoing Persons); or (iv) except in connection with owning or operating an Active Business Line, solicit or induce, or attempt to solicit or induce any customer, supplier, licensee or other advisor business relation of the Business as of the Closing to any other Personcease doing business with Buyer or its Affiliates.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Circor International Inc), Asset Purchase Agreement
Non-Competition; Non-Solicitation. (a) In consideration of this Agreement, the Executive 9.1 The Employee agrees that, for the period ending one year after the termination of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neitheras defined in Section 9.4 below), either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with without the prior written consent of the Company: (a) he shall not, serving within the Territory (as a director defined in Section 9.5 below), directly or other advisor to indirectly, either as principal, manager, agent, consultant, officer, director, greater than two (2%) percent holder of any class or series of equity securities, partner, investor, lender or employee or in any other Personcapacity, carry on, be engaged in or have any financial interest in or otherwise be connected with, any entity which is now or at the time, has material operations which are engaged in any business activity competitive (directly or indirectly) with the business of the Company or its Affiliates (currently (i) the manufacture and sale of (x) automotive airbag fabric and cushions, (y) value-added synthetic fabrics used in a variety of niche industrial and commercial applications and (z) metal airbag, industrial and ordinance components and (ii) systems integration and manufacturing for ordnance programs) including, for these purposes, any business in which, at the termination of his employment, there was a bona fide intention on the part of the Company or its Affiliates to engage in the future; and (b) he shall not, within the Territory (as defined in Section 9.5 below), on behalf of any competing entity, directly or indirectly, have any dealings or contact with any suppliers or customers of the Company or its Affiliates.
9.2 During the Non-Competition Period, Employee agrees that, without the prior written consent of the Company (dand other than on behalf of the Company), Employee shall not, on his own behalf or on behalf of any person or entity, directly or indirectly, hire or solicit the employment of any employee who has been employed by the Company or its Affiliates at any time during the six (6) months immediately preceding such date of hiring or solicitation.
9.3 The Executive agrees Employee and the Company agree that the covenants contained in this Section 10 of non-competition and non-solicitation are reasonable covenants under the circumstances, and further agrees agree that if if, in the opinion of a any court of competent jurisdiction, jurisdiction such restraint is covenants are not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such the court shall appear not reasonable and land to enforce the remainder thereof of these covenants as so amended. The Employee agrees that any breach of the covenants contained in this Section 9 would irreparably injure the Company and/or its Affiliates. Accordingly, the Employee agrees that the Company and/or its Affiliates, in addition to pursuing any other remedies it or they may have in law or in equity, may obtain an injunction against the Employee from any court having jurisdiction over the matter, restraining any further violation of this Section 9.
9.4 The provisions of this Section 9 shall extend for the Term and shall further extend for any period following the date of the termination of Employee's employment for any reason during which the Employee (or his dependents) is receiving severance and/or non-competition payment and/or extended benefits coverage from the Company (herein referred to as the "Non-Competition Period"). The provisions of this Section 9 shall survive any termination of this Agreement.
9.5 For purposes of this Agreement, "Territory" shall mean:
Appears in 2 contracts
Samples: Employment Agreement (Safety Components International Inc), Employment Agreement (Safety Components International Inc)
Non-Competition; Non-Solicitation. (a) In consideration of this AgreementDuring the Restrictive Period, the Executive agrees thatSeller will not, for the period ending one year after the termination of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will and shall cause its Affiliates to not, directly or indirectly (whether including as a sole proprietormember, partner agent, shareholder or venturer, stockholder, director, officer, employee, consultant investor of any Person or in any other capacity capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as principal hereinafter defined), (ii) have any direct or agent indirect ownership interest in - 33 - (other than through the ownership of 10% or through less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested each case in or associated with any Person which conducts or engages Restricted Business in the Triarco Business within the United States;
(ii) take any action, directly Restricted Territory or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence induce or attempt to influence induce, or assist anyone else to induce or attempt to induce, any Person that is a contracting party with customer within the Company at Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any time during trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Non-Competition Period to terminate any written or oral agreement with the Company.Restricted Territory;
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer With respect to each of the Company during File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the term hereof Lease applicable to a File Buy Store if such sublease or the Non-Competition Period nor engage, hire, employassignment would, or induce the employment of any such Person whether or not such officercould reasonably be expected to, employee or customer would commit result in a breach of contract by reason any of leaving service or transferring businessthe restrictive covenants set forth in this Section 11.05.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities For purposes of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.11.05:
Appears in 2 contracts
Samples: Asset Purchase Agreement (Spartan Stores Inc), Asset Purchase Agreement (Spartan Stores Inc)
Non-Competition; Non-Solicitation. (ai) In consideration of this Agreement, During Participant’s employment with the Executive agrees that, Company and for the period ending one year of six (6) months (or, if longer, the post-termination period specified in any individual severance or employment agreement, as applicable, to which the Participant is a party) immediately after the termination of Participant’s employment with the Company (including any parent, subsidiary, affiliate or division of the Company) for any reason whatsoever, and whether voluntary or involuntary, Participant shall not invest in (other than in a publicly traded company with a maximum investment of no more than 1% of outstanding shares), counsel, advise, consult, be employed or otherwise engaged by or with any entity or enterprise (“Competitor”) that competes or that intends or plans to compete with (A) any area of business in which the Company or any affiliate of the Company is engaged, and in which the Participant was engaged, participated in or about which the Participant learned Confidential Information during the Participant’s last thirty-six (36) months of employment, or (B) any other area of business for which the Company or any affiliate of the Company has taken substantial steps towards becoming engaged, and in which the Participant was engaged, participated in or about which the Participant learned Confidential Information during the Participant’s last 36 months of employment. Because the Company and its affiliates engage in business nationwide, the obligations under this Section 9(c)(i) shall apply nationwide (anywhere in the United States). Notwithstanding the foregoing, the Participant shall not violate this provision by providing services to a unit, division, subsidiary or affiliate of a Competitor which otherwise engages in activities competitive with the business activities of the Company if such unit, division, subsidiary or affiliate for which the Participant provides services does not engage in such business activities.
(ii) During the Participant’s employment with the Company (or any parent, subsidiary, affiliate or division of the Company) and for the period of twelve months immediately after the termination of the Executive's Participant’s employment with the Company by (or any parent, subsidiary, affiliate or division of the Company Company) for Cause any cause whatsoever, and whether voluntary or by the Executive without Good Reason involuntary (the "Non-Competition “Restricted Period"”), the Executive Participant will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, either directly or indirectly, to finance, guarantee either for himself or provide for any other material assistance to any Person engaged in the Triarco Business;
(iii) person, firm, company or corporation, call upon, solicit, contact divert, or accept business take away, or attempt to solicit, divert or take away any of any client the customers, prospective customers, business, vendors or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ suppliers of the Company or during the Non-Competition Period; or
that (iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period last three years of the Participant’s employment) the Participant had dealings with, or responsibility for, or as to terminate any written or oral agreement with which the Participant had access to the Company’s (or any affiliate of the Company’s) Confidential Information or such customers’, providers’, vendors’ or suppliers’ confidential information.
(biii) The Executive Participant shall neithernot, either on the Executive's own account or in conjunction with or on behalf of at any other Person, solicit or entice away from the Company any officer, employee or customer of the Company time during the term hereof or the Non-Competition Period nor engageRestricted Period, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with without the prior written consent of the Company, (i) directly or indirectly, solicit, recruit or employ (whether as an employee, officer, director, agent, consultant or independent contractor) any person who was or is at any time during the previous six months an employee, representative, officer or director of the Company (or any parent, subsidiary, affiliate or division of the Company); or (ii) take any action to encourage or induce any employee, representative, officer or director of the Company (or any parent, subsidiary, affiliate or division of the Company) to cease their relationship with the Company (or any parent, subsidiary, affiliate or division of the Company) for any reason. Notwithstanding the foregoing, the Participant shall not violate this Section 9(c)(iii) by advertising not specifically targeted at any of the Company’s employees and serving as a director or other advisor to any other Personreference upon request.
(div) The Executive agrees that the covenants contained This Section 9(c) shall not apply if a "Change in this Control" (as defined in Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended3) occurs.
Appears in 2 contracts
Samples: Restricted Stock Unit Agreement (Centene Corp), Restricted Stock Unit Agreement (Centene Corp)
Non-Competition; Non-Solicitation. (a) In consideration The Company shall provide Executive access to Confidential Information for use only during the Employment Period, and Executive acknowledges and agrees that the Company Group will be entrusting Executive, in Executive’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 Executive hereunder, Executive has voluntarily agreed to the covenants set forth in this Section 10. Executive agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in all respects, do not interfere with public interests, will not cause Executive undue hardship, and are material and substantial parts of this AgreementAgreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill, customer relationships, and legitimate business interests.
(b) During the Prohibited Period, Executive agrees thatshall not, for without the period ending one year after the termination prior written approval of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will notBoard, directly or indirectly (whether as a sole proprietorindirectly, partner for Executive or venturer, stockholder, director, officer, employee, consultant on behalf of or in conjunction with any other capacity as principal person or agent or through entity of any Person, subsidiary or employee acting as nominee or agent):nature:
(i) conduct or engage in or be interested participate within the Market Area in or associated competition with any Person member of the Company Group in any aspect of the Business, which conducts prohibition shall prevent Executive from directly or engages 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 Triarco 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 within in the United StatesMarket Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Executive’s duties or responsibilities: (x) are the same as or similar to the duties or responsibilities that Executive had on behalf of any member of the Company Group, (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, or (z) otherwise involve Executive having responsibilities with respect to the Business;
(ii) take appropriate any actionBusiness Opportunity of, directly or indirectlyrelating to, to finance, guarantee or provide any other material assistance to any Person engaged member of the Company Group located in the Triarco BusinessMarket Area;
(iii) solicit, contact canvass, approach, encourage, entice or accept business induce any customer or supplier of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ member of the Company Group with whom or during which Executive had contact on behalf of any member of the Non-Competition PeriodCompany Group or about whom or which Executive obtained Confidential Information in the final 24 months of his employment with the Company to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) influence solicit, canvass, approach, encourage, entice or attempt to influence induce any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written employee or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf contractor of any other Person, solicit or entice away from the Company any officer, employee or customer member of the Company during Group to terminate his, her or its employment or engagement with any member of the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring businessCompany Group.
(c) The restrictive provisions hereof For the avoidance of doubt, Section 10(b)(i)(B) above shall not prohibit prevent Executive, following the Executive Termination Date, from (i) having an equity interest being employed or engaged by a diversified entity that engages in the securities Business, so long as: (x) such entity’s revenues associated with that part of any entity engaged in the Triarco Business or any its business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, that relate to the extent that such interest does not exceed 5% of the outstanding equity interests Business are less than ten (10%) of such entity, ’s revenues; and (iiy) investing as a passive investor in an entity engaging in Executive’s direct and indirect responsibilities do not relate to the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other PersonBusiness.
(d) The Executive agrees that Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants contained set forth in Section 9 and in this Section 10 are reasonable covenants under the circumstances10, and further agrees because of the immediate and irreparable damage that if may 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 seek to enforce the foregoing covenants, in the opinion 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.
(e) 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 restraint is not reasonable in any respectrestrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, such court and this Agreement shall thereby be reformed.
(f) The following terms shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.following meanings:
Appears in 2 contracts
Samples: Employment Agreement (Wrap Technologies, Inc.), Employment Agreement (Wrap Technologies, Inc.)
Non-Competition; Non-Solicitation. A. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its affiliates and accordingly agrees as follows:
B. During the Employment Term and for a period of one year following the date Executive ceases to be employed by the Company (aor for a period of two (2) In consideration years if Executive ceases to be employed by the Company by reason of employment termination pursuant to Section IV.A. above) (the “Restricted Period”), Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”), directly or indirectly solicit or assist in soliciting in competition with the Company, the business of any client or prospective client:
1. with whom Executive had personal contact or dealings on behalf of the Company during the one year period preceding Executive’s termination of employment;
2. with whom employees reporting to Executive have had personal contact or dealings on behalf of the Company during the one year immediately preceding the Executive’s termination of employment; or
3. for whom Executive had direct or indirect responsibility during the one year immediately preceding Executive’s termination of employment.
C. During the Restricted Period, Executive will not directly or indirectly:
1. engage in any business that materially competes with any business of the Company or its affiliates (including, without limitation, businesses which the Company or its affiliates have specific plans to conduct within twelve months from the effective of the termination and as to which Executive is personally aware of or should be personally aware of such planning in the future and as to which Executive is aware of such planning) in any geographical area that is within 100 miles of any geographical area where the Company or its affiliates manufactures, produces, sells, leases, rents, licenses or otherwise provides its products or services (a “Competitive Business”);
2. enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person) who or which engages in a Competitive Business;
3. acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; or
4. interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of this Agreement) between the Company or any of its affiliates and customers, clients, suppliers, partners, members or investors of the Company or its affiliates.
D. Notwithstanding anything to the contrary in this Agreement, Executive agrees thatmay, for directly or indirectly own, solely as an investment, securities of any Person engaged in the period ending one year after business of the Company or its affiliates which are publicly traded on a national stock exchange or on the over-the-counter market if Executive (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 5% or more of any class of securities of such Person.
E. 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:
1. solicit or encourage any employee of the Company or its affiliates to leave the employment of the Company or its affiliates; or
2. hire any such employee who was employed by the Company or its affiliates as of the date of Executive’s termination of the Executive's employment with the Company by or who left the employment of the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period")its affiliates coincident with, or within one year prior to or after, the termination of Executive’s employment with the Company.
F. During the Restricted Period, Executive will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, solicit or encourage to finance, guarantee or provide any other material assistance cease to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business work with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence its affiliates any Person that is a contracting party consultant then under contract with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Companyits affiliates.
(b) The G. It is expressly understood and agreed that although Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from and agreed that although Executive and the Company any officer, employee or customer of consider the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) The Executive agrees that the covenants restrictions contained in this Section 10 are reasonable covenants under the circumstancesV to be reasonable, and further agrees that if in the opinion of a final judicial determination is made by a court of competent jurisdictionjurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which this Agreement shall not be rendered void but shall be deemed amended to apply as to such court shall appear not reasonable maximum time and territory and to enforce such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, 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 remainder thereof as so amendedenforceability of any of the other restrictions contained herein.
Appears in 2 contracts
Samples: Employment Agreement (Integrated Electrical Services Inc), Employment Agreement (Integrated Electrical Services Inc)
Non-Competition; Non-Solicitation. (a) a. In consideration of this Agreementthe offer of employment, severance benefits and Options to be granted to Xxxxxx hereunder, and for other good and valuable consideration, the Executive agrees thatreceipt and sufficiency of which are hereby acknowledged, for the period ending one year after the termination of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive Term, Xxxxxx shall neithernot, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with without the prior written consent of the Company, serving anywhere in the world, directly or indirectly, (i) enter into the employ of or render any services to any Competitive Business; (ii) engage in any Competitive Business for his own account; (iii) become associated with or interested in any Competitive Business as an individual, partner, shareholder, creditor, director, officer, principal, agent, employee, trustee, consultant, advisor or in any other relationship or capacity; (iv) employ or retain, or have or cause any other person or entity to employ or retain, any person who was employed or retained by the Company while Xxxxxx was employed by the Company; or (v) solicit, interfere with, or endeavor to entice away from the Company, for the benefit of a director Competitive Business, any of its customers or other advisor persons with whom the Company has a contractual relationship. For purposes of this Agreement, a “Competitive Business” shall mean any person, corporation, partnership, firm or other entity which sells or has plans to sell ten (10) or more brands of luxury or high-end designer apparel and/or fashion accessories at prices that are consistently discounted to manufacturer’s suggested retail prices. However, nothing in this Agreement shall preclude Xxxxxx from investing his personal assets in the securities of any corporation or other Personbusiness entity which is engaged in a Competitive Business if such securities are traded on a national stock exchange or in the over-the-counter market and if such investment does not result in him beneficially owning, at any time, more than three percent (3%) of the publicly-traded equity securities of such Competitive Business. For purposes of this agreement, the “Non-Competition Term” shall mean a period beginning upon the commencement of the Employment Term and ending on the one (1) year anniversary of the end of the Employment Term.
(d) The Executive agrees x. Xxxxxx and the Company agree that the covenants of non-competition and non-solicitation contained in this Section 10 paragraph 6 are reasonable covenants under the circumstances, and further agrees agree that if if, in the opinion of a any court of competent jurisdiction, such restraint is covenants are not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such the court shall appear not reasonable and to enforce the remainder thereof of these covenants as so amended. Xxxxxx agrees that any breach of the covenants contained in this paragraph 6 would irreparably injure the Company. Accordingly, Xxxxxx agrees that the Company, in addition to pursuing any other remedies it may have in law or in equity, may obtain an injunction against Xxxxxx from any court having jurisdiction over the matter, restraining any further violation of this paragraph 6.
Appears in 2 contracts
Samples: Employment Agreement (Bluefly Inc), Employment Agreement (Bluefly Inc)
Non-Competition; Non-Solicitation. (ai) In consideration of this Agreement, the Executive agrees that, for During the period beginning on the Effective Date and ending one year after 12 months following the termination of date on which the Executive's ’s employment with the Company is terminated for any reason (the “Non-Compete Period”), the Executive covenants and agrees not to, and shall cause her affiliates not to, directly or indirectly anywhere in the world, conduct, manage, operate, engage in or have an ownership interest in any business or enterprise that (A) manufactures, sells, distributes or develops abuse-deterrent orally delivered pharmaceuticals, (B) uses any trademarks, tradenames or slogans similar to those of the Company or its affiliates; or (C) is engaged in any other activities that are otherwise competitive with the business of the Company or its affiliates as conducted or proposed to be conducted as of the termination date (collectively, the “Business”). Notwithstanding anything herein to the contrary, if the Executive’s employment with the Company is terminated by the Company for without Cause or by the Executive without for Good Reason (Reason, in each case, within 24 months following a Change in Control, the "Non-Competition Period")Compete Period shall be a period of 24 months. Notwithstanding the foregoing, nothing herein shall preclude the Executive will not, directly or indirectly (whether from performing any duties as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal agent of the Company or agent its affiliates or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any actionowning, directly or indirectly, in the aggregate less than 5% of any business competitive with the Company or its affiliates that is subject to financethe reporting obligations of the 1934 Act.
(ii) During the Non-Compete Period, guarantee the Executive shall not, and shall cause her affiliates to not, directly or provide indirectly, call-on, solicit or induce any customer or other business relationship of the Company or its affiliates for the provision of products or services related to the business of the Company or in any other material assistance to any Person engaged in manner that would otherwise interfere with the Triarco Business;business relationship between the Company and its affiliates and their respective customers and other business relationships.
(iii) solicitDuring the Non-Compete Period, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client shall not, and shall cause her affiliates to not, directly or counterparty while in the employ indirectly, call-on, solicit or induce, any employee of the Company or during its affiliates to leave the Non-Competition Period; or
(iv) influence employ of, or attempt to influence any Person that is a contracting party with terminate its relationship with, the Company or its affiliates for any reason whatsoever, nor shall the Executive offer or provide employment (whether such employment is for the Executive or any other business or enterprise), either on a full-time, part-time or consulting basis, to any person who then currently is, or within six (6) months immediately prior thereto was, an employee or independent contractor of the Company; provided, however, the foregoing shall not prohibit a general solicitation to the public through general advertising or similar methods of solicitation not specifically directed at any time during the Non-Competition Period to terminate any written or oral agreement with employees of the Company.
(biv) The Executive acknowledges and agrees that the provisions of this Section 8 are reasonable and necessary to protect the legitimate business interests of the Company and its affiliates. The Executive shall neithernot contest that the Company’s and the Company’s affiliates’ remedies at law for any breach or threat of breach by the Executive or any of her affiliates of the provisions of this Section 8 will be inadequate, either on and that the Executive's own account Company and its affiliates shall be entitled to an injunction or injunctions to prevent breaches of the provisions of this Section 8 and to enforce specifically such terms and provisions, in conjunction with addition to any other remedy to which the Company or on behalf its affiliates may be entitled at law or equity. The restrictive covenants contained in this Section 8 are covenants independent of any other Person, solicit provision of this Agreement or entice away from any other agreement between the parties hereunder and the existence of any claim which the Executive may allege against the Company under any officer, employee other provision of this Agreement or customer any other agreement will not prevent the enforcement of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring businessthese covenants.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(dv) The Executive agrees expressly acknowledges that the covenants contained in this Section 10 8(b) are reasonable covenants under a material part of the circumstancesconsideration bargained for by the Company and, without the agreement of the Executive to be bound by such covenants, the Company would not have agreed to enter into this Agreement.
(vi) If any of the provisions contained in this Section 8(b) shall for any reason be held to be excessively broad as to duration, scope, activity or subject, then such provision shall be construed by limiting and further agrees that if in reducing it, so as to be valid and enforceable to the opinion of maximum extent compatible with the applicable law or the determination by a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 2 contracts
Samples: Employment Agreement (Egalet Corp), Employment Agreement (Egalet Corp)
Non-Competition; Non-Solicitation. (a) In consideration of this Agreement, the Executive 9.1 The Employee agrees that, for the period ending one year after the termination of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neitheras defined in Section 9.4 below), either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with without the prior written consent of the CompanyCompany or Valentec, serving as a director the case may be: (i) he shall not, directly or other advisor to indirectly, either as principal manager, agent, consultant, officer, director, greater than two (2 %) percent holder of any class or series of equity securities, partner, investor, lender or employee or in any other Personcapacity, carry on, be engaged in or have any financial interest in or otherwise be connected with, any entity which is now or at the time, has material operations which are engaged in any business activity competitive (directly or indirectly) with the business of the Company (currently the manufacture and sale of (i) automotive airbags and (ii) military ordnance products) or Valentec including, for these purposes, any business in which, at the termination of his employment, there was a bona fide intention on the part of the Company or Valentec to engage in the future; and (ii) he shall not, on behalf of any competing entity, directly or indirectly, have any dealings or contact with any suppliers or customers of the Company or Valentec.
9.2 During the Non-Competition Period, Employee agrees that, without the prior written consent of the Company or Valentec, as the case may be, (dand other than on behalf of the Company or Valentec), Employee shall not, on his own behalf or on behalf of any person or entity, directly or indirectly hire or solicit the employment of any employee who has been employed by the Company or Valentec at any time during the one (1) year period immediately preceding such date of hiring or solicitation.
9.3 The Executive agrees Employee and the Company agree that the covenants of non- competition and non-solicitation contained in this Section 10 9 are reasonable covenants under the circumstances, and further agrees agree that if if, in the opinion of a any court of competent jurisdiction, jurisdiction such restraint is covenants are not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such the court shall appear not reasonable and to enforce the remainder thereof of these covenants as so amended. The Employee agrees that any breach of the covenants contained in this Section 9 would irreparably injure the Company or Valentec, as the case may be. Accordingly, the Employee agrees that the Company, or Valentec, as the case may be, in addition to pursuing any other remedies it may have in law or in equity, may obtain an injunction against the Employee from any court having jurisdiction over the matter, restraining any further violation of this Section 9.
9.4 The provisions of this Section 9 shall extend for the Term and survive the termination of the Agreement for the greater of (x) one year from the date of such termination and (y) the period in which severance and non-competition payments are made to Employee pursuant to this Agreement (herein referred to as the "Non-Competition Period").
Appears in 2 contracts
Samples: Employment Agreement (Safety Components International Inc), Employment Agreement (Safety Components International Inc)
Non-Competition; Non-Solicitation. (a) In consideration During the Term of this Agreement, the Executive agrees that, for the period ending one year after the termination of the Executive's employment with the Company by the Company and for Cause or by the Executive without Good Reason a period of nine months thereafter (the "Non-Competition Compete Period"), ) the Executive will not, directly or indirectly indirectly, without the express written consent of the Board of Directors: own, manage, operate, join, control, or participate in or be connected with, as an officer, employee partner, stockholder, director, adviser, consultant, or agent (whether as paid or unpaid), any business, which is at the time engaged in any activities which, directly or indirectly, compete with the business of the Company (a sole "Competitive Business") provided that the Company continues to pay to Executive, in a timely manner, the amounts required pursuant to Section 4.2 of this Agreement; the foregoing provision being also intended to prohibit the Executive from acquiring or holding in excess of 5% of any issue of stock or securities of any Company which has any securities listed on a national securities exchange or quoted in the daily listing of over-the-counter market securities.
(b) During the Term of Executive's employment and for a period of two years thereafter the Executive will not directly or indirectly without the express written consent of the Board of Directors: (i) recruit, solicit or otherwise induce or influence any proprietor, partner or venturerpartner, stockholder, lender, director, officer, employee, consultant sales agent, joint venturer, investor, lessor, supplier, customer, consultant, agent, representative or in any other capacity as principal person which has a business relationship with the Company to discontinue, reduce or agent modify such employment, agency or through any Personbusiness relationship with the Company, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take employ or seek to employ or cause any action, directly Competitive Business to employ or indirectly, seek to finance, guarantee employ any person or provide any other material assistance to any Person engaged in the Triarco Business;
agent who is then (iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company was at any time during within one year prior to the Non-Competition Period date the Executive or the Competitive Business employs or seeks to terminate any written employ such person) engaged or oral agreement with retained by the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit In the event that Executive from (i) having an equity interest breaches her obligations in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or informationunder this Section 3.3, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director in addition to pursuing all available remedies under this Agreement, at law or other advisor otherwise, and without limiting its right to any other Personpursue the same may cease all payments due to the Executive under this Agreement.
(d) The Since a breach of the provisions of this Section 3.3 could not adequately be compensated by money damages, the Company shall be entitled, in addition to any other right and remedy available to it, to an injunction restraining such breach or a threatened breach, and in either case no bond or other security shall be required in connection therewith, and Executive hereby consents to the issuance of such injunction. Executive agrees that the covenants provisions of this Section 3.3 are necessary and reasonable to protect the Company in the conduct of its business. If any restriction contained in this Section 10 are reasonable covenants under 3.3 shall be deemed to be invalid, illegal, or unenforceable by reason of the circumstancesextent, and further agrees that if in duration, or geographical scope thereof, or otherwise, then the opinion of a court of competent jurisdiction, making such restraint is not reasonable in any respect, such court determination shall have the rightright to reduce such extent, power duration, geographical scope, or other provisions hereof, and authority to excise or modify in its reduced form such provision or provisions of these covenants which as to such court restriction shall appear not reasonable and to enforce then be enforceable in the remainder thereof as so amendedmanner contemplated hereby.
Appears in 2 contracts
Samples: Employment Agreement (Pacific Biometrics Inc), Employment Agreement (Pacific Biometrics Inc)
Non-Competition; Non-Solicitation. (a) In consideration of this Agreement, the Executive agrees that, for During the period (the “Restricted Period”) Commencing on the date hereof and ending one year after on the termination second anniversary of the Executive's employment with the Company by the Company for Cause or by the Termination Date, Executive without Good Reason (the "Non-Competition Period"), the Executive covenants and agrees that he will not, without the Company’s prior written consent, directly or indirectly (whether as a sole proprietorindirectly, partner either on behalf of himself or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal person, firm, corporation or agent other entity (other than on behalf of the Company or through any Person, subsidiary or employee acting as nominee or agentits Affiliates):
(i) conduct be employed by, own, manage, control, operate, advise or engage in provide consulting services to any entity or be interested in or associated individual that competes with any Person which conducts or engages the Company in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged areas of Txxx-Xxxxxxx pension plan administration and health and welfare claims processing in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of geographical areas where the Company or during any of its subsidiaries conducts business or proposes to conduct business (a “Competitive Business”); provided, however, that, notwithstanding the Non-Competition Period; or
foregoing, passive ownership of not more than one percent (iv1%) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof outstanding voting or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an other equity interest in the securities of any entity engaged in a Competitive Business, the Triarco Business common stock or any business with respect to comparable equity securities of which the Executive obtained confidential or proprietary data or information, which entity's securities are listed traded on a nationally-recognized national securities exchange or quotation system or traded in the over-the-counter market, shall not be a violation of this Section 6;
(ii) solicit or divert any business or any customer from the Company or its Affiliates or assist any person, firm, corporation or other entity in doing so or attempting to do so;
(iii) cause or seek to cause any person, firm or corporation to refrain from dealing or doing business with the extent that such interest does not exceed 5% Company or its Affiliates or assist any person, firm, corporation or other entity in doing so; or
(iv) hire, solicit or divert from the Company or its Affiliates any of their respective employees, consultants or agents who have, at any time during the immediately preceding one (1) year period from the date hereof or the Restricted Period, been engaged by the Company or its Affiliates, nor assist any person, firm, corporation or other entity in doing so. As used in this Agreement, the term “Affiliate” shall mean any entity controlling, controlled by or under the common control with the Company. For purposes of this Agreement, “control” shall mean the direct or indirect ownership of fifty (50%) percent or more of the outstanding equity interests securities or voting rights of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or tradedpossession, so long as such interest does not exceed 5% directly or indirectly, of the outstanding equity interests power to direct, or cause the direction of, the management and policies of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Personan entity.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 2 contracts
Samples: Employment Agreement (United Benefits & Pension Services, Inc.), Employment Agreement (United Benefits & Pension Services, Inc.)
Non-Competition; Non-Solicitation. (a) In consideration For a period of this Agreement10 years following the Closing, the Executive agrees thatSeller shall not, for the period ending one year after the termination of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will notand shall cause its Affiliates not to, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary Person or employee acting as nominee or agent):contractual arrangement:
(i) conduct or engage in any business anywhere that manufactures, produces or supplies products or services of the kind manufactured, produced or supplied by the Business (but excluding without limitation any of the foregoing that are manufactured, produced or supplied by the Seller on the Closing Date other than in connection with the Business) (“Competing Business”), or perform management, executive or supervisory functions with respect to, own, operate, join, control, render financial assistance to, receive any economic benefit from, or allow any of its officers, directors or employees to be interested in connected as an officer, director, employee, partner, member, stockholder, consultant or associated with otherwise with, any Person which conducts engaged in a Competing Business (provided, for the avoidance of doubt, that in no event shall the Seller or engages any of its Affiliates directly or indirectly provide on an original equipment manufacturer basis or otherwise sell, distribute or market to any Person any Specialty Generator (including any improvements or developments in connection therewith) or any other unique generator manufactured by the Triarco Seller or its Affiliates, in each case, as a substitute for or competitor to any Standard Generators); provided, however, that Competing Business within shall not include, and following the United StatesClosing, the Seller shall be permitted to, manufacture, produce and/or supply, the Specialty Generators;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact recruit or accept business of hire any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company person who at any time during on or after the Non-Competition Period to terminate any written or oral agreement with Closing is a Buyer Employee (as hereinafter defined); provided, that the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof foregoing shall not prohibit (A) a general solicitation to the Executive public of general advertising or similar methods of solicitation by search firms not specifically directed at Buyer Employees or (B) the Seller or any of its Affiliates from (i) having an equity interest in soliciting, recruiting or hiring any Buyer Employee who has ceased to be employed or retained by the securities Seller, the Buyer or any of any entity their respective Affiliates for at least 12 months. For purposes of this Section 5.3, “Buyer Employees” means, collectively, officers, directors and employees of the Buyer and its Affiliates who work or are engaged in connection with the Triarco Business, and persons acting under any management, service, consulting, distribution, dealer or similar contract in connection with the Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.Purchased Assets; or
Appears in 2 contracts
Samples: Asset Purchase Agreement (BOVIE MEDICAL Corp), Asset Purchase Agreement (BOVIE MEDICAL Corp)
Non-Competition; Non-Solicitation. (a) In consideration Subject to Section 4, so long as this Agreement continues in effect the Consultant shall not, without the prior approval of the Company, alone or as a partner, officer, director, consultant, employee, stockholder or otherwise, participate in any business, firm or corporation that develops any technology, process, method or products for, or directly relating to, the Field (a “Competing Company”) other than for the Company. The foregoing sentence, however, shall not be construed to prohibit, during the term of this Agreement: (i)the Consultant’s purchase on a national securities exchange or in the “over-the-counter” market of no more than two percent (2%) of the voting securities of a Competing Company listed on such exchange or publicly traded in such market; (ii) the Consultant from working for a Competing Company that has a number of divisions or business units, provided that the Consultant does not work for, or provide any Confidential Information (as defined in Section 7) to, the divisions or business units that research, develop, manufacture, license, sell, or otherwise provide any product or service directly relating to the Field; (iii)the Consultant from providing consulting services to a Competing Company subject to the policies and guidelines of the RL provided that the Company approves (in its sole discretion) each such consulting engagement in writing; (iv) during the term of this Agreement, the Executive agrees thatConsultant from pursuing research in me Field with RI funded by a governmental, for commercial (not including a Competing Company), non-profit or academic sponsor(s) and publishing any results therefrom (subject to compliance with Section 7(f) hereof), provided, however, that nothing herein shall, without the period ending one year after the termination of the Executive's employment Company’s prior written consent, permit Consultant to publish Company’s Confidential Information, and provided further that such research is not conducted with the intent of directly benefiting a Competing Company by unless Consultant receives the Company for Cause Company’s prior written approval (in its sole discretion) therefor, or by (v) the Executive Consultant from at any time publishing materials that relate to the Field, provided, however, that nothing herein shall, without Good Reason the Company’s prior written consent (in its sole discretion), permit Consultant to publish Company’s Confidential Information, Notwithstanding the "foregoing, nothing in this Section 5(a) shall conflict with or supersede any of Consultant’s rights and responsibilities under Section 4 hereof. The limitations in this Section 5 shall apply solely to Consultant and nothing herein shall or is intended to restrict RI’s ability to engage in research in the Field with any funding source, or shall apply to any engagements of Consultant that predate the effective date of this Agreement
(b) During the Non-Competition Period"), the Executive will Consultant shall not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent)::
(i) conduct contact or engage in solicit business from any customer of the Company for the purpose of attempting to sell, license or be interested in provide to or associated with from such customer the same or similar products, services or technology as are currently provided by or to the Company or any Person which conducts product, service or engages in the Triarco Business within the United Statestechnology that is similar to any such product, service or technology;
(ii) solicit or take any actionother action which is intended to induce or encourage, directly or indirectlyis reasonably likely to have the effect of inducing or encouraging, any employee or consultant of the Company to finance, guarantee or provide any other material assistance to any Person engaged in cease work for the Triarco BusinessCompany;
(iii) solicitsolicit or take any other action which is intended to induce or encourage, contact or accept business is reasonably likely to have the effect of inducing or encouraging, any client employee or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ consultant of the Company or during to work for any Competing Company, without express prior written consent of the Non-Competition PeriodBoard; or
(iv) influence interfere, or attempt to influence interfere with, the relationship or prospective relationship of the Company with any Person person or entity that is or was a contracting party with customer, client or supplier to the Company at any time during the Non-Competition Period or to cause a customer, client or supplier to terminate any written or oral an agreement with the Company.
(c) As used in this Agreement, the term “Non-Competition Period” shall mean the period beginning with the date of this Agreement and continuing through the termination of this Agreement for any reason. The term “Post-Termination Period” shall mean the period beginning with the termination of this Agreement for any reason and continuing for 24 months thereafter. During the Post-Termination Period, the Consultant agrees to provide the Post-Termination Services (as defined below) to the Company in the maximum amount of up to ten (10) hours per month, and the Company agrees to retain the Consultant for such purposes; provided however, neither the Consultant’s performance of the Post-Termination Services nor anything in this Section 5 to the contrary will extend any non-competition period under this Agreement. For purposes of this Agreement, “Post-Termination Services” means to (i) advise and consult with the Company’s executive management and the Board with respect to the Company’s (a) technical, medical or scientific issues and problems relating to the design, development, production, sale or marketing of any products, technologies or services then currently developed, under development, produced, sold or marketed by the Company the (“Company Business”) and/or (b) the future anticipated direction of the Company Business as the Board may request, from time to time during the Post-Termination Period. The Executive shall neitherCompany agrees to allow such services to be performed on weekends and during evening hours and to cooperate with the Consultant to the extent the Consultant secures other consulting or employment engagements during the Post-Termination Period. For providing the Post-Termination Services during the Post-Termination Period, either on the Executive's own account or Company will in conjunction with each calendar month during the Post-Termination Period that the Consultant provides the Post-Termination Services, pay the Consultant an amount equal $187.50 per hour (the “Payment”) for each hour (or on behalf a prorated basis for each partial hour) of any other Person, solicit or entice away from such services and reimburse Consultant for expenses as provided in Section 2(b) of this Agreement. The Payment is the Company any officer, employee or customer of Consultant’s sole compensation for providing the Post-Termination Services to the Company during the term hereof or the NonPost-Competition Period nor engageTermination Period; provided, hirehowever, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) The Executive agrees that the covenants nothing contained in this Section 10 are reasonable covenants 5(c) shall limit or offset amounts paid or to be paid to Consultant under Section 2 of this Agreement Notwithstanding the provisions of this Section 5(c), the vesting of the stock restricted under the circumstancesRestricted Stock Purchase Agreement will cease upon termination of this Agreement and will not continue during the Post-Termination Period, and further agrees that if except as otherwise provided in the opinion Restricted Stock Purchase Agreement. In the event of a court breach of competent jurisdictionthe Consultant’s obligations set form in this Section 5(c), such restraint is not reasonable in any respect, such court shall the Company will have the right, power remedies provided herein and authority such other remedies as may be available to excise it under law or modify such provision contract or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amendedat equity.
Appears in 2 contracts
Samples: Consulting Agreement (AveXis, Inc.), Consulting Agreement (AveXis, Inc.)
Non-Competition; Non-Solicitation. (a) a. In consideration of this Agreementthe offer of employment, severance benefits and Options to be granted to Xxxxxx hereunder, and for other good and valuable consideration, the Executive agrees thatreceipt and sufficiency of which are hereby acknowledged, for the period ending one year after the termination of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive Term, Xxxxxx shall neithernot, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with without the prior written consent of the Company, serving anywhere in the world, directly or indirectly, (i) enter into the employ of or render any services to any Competitive Business; (ii) engage in any Competitive Business for his own account; (iii) become associated with or interested in any Competitive Business as an individual, partner, shareholder, creditor, director, officer, principal, agent, employee, trustee, consultant, advisor or in any other relationship or capacity; (iv) employ or retain, or have or cause any other person or entity to employ or retain, any person who was employed or retained by the Company while Xxxxxx was employed by the Company; or (v) solicit, interfere with, or endeavor to entice away from the Company, for the benefit of a director Competitive Business, any of its customers or other advisor persons with whom the Company has a contractual relationship. For purposes of this Agreement, a “Competitive Business” shall mean any person, corporation, partnership, firm or other entity which sells or has plans to sell ten (10) or more brands of luxury or high-end designer apparel and/or fashion accessories at prices that are consistently discounted to manufacturer’s suggested retail prices. However, nothing in this Agreement shall preclude Xxxxxx from investing his personal assets in the securities of any corporation or other Personbusiness entity which is engaged in a Competitive Business if such securities are traded on a national stock exchange or in the over-the-counter market and if such investment does not result in him beneficially owning, at any time, more than three percent (3%) of the publicly-traded equity securities of such Competitive Business. For purposes of this agreement, the “Non-Competition Term” shall mean a period beginning upon the commencement of the Employment Term and ending on the two (2) year anniversary of the end of the Employment Term.
(d) The Executive agrees x. Xxxxxx and the Company agree that the covenants of non-competition and non-solicitation contained in this Section 10 paragraph 6 are reasonable covenants under the circumstances, and further agrees agree that if if, in the opinion of a any court of competent jurisdiction, such restraint is covenants are not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such the court shall appear not reasonable and to enforce the remainder thereof of these covenants as so amended. Xxxxxx agrees that any breach of the covenants contained in this paragraph 6 would irreparably injure the Company. Accordingly, Xxxxxx agrees that the Company, in addition to pursuing any other remedies it may have in law or in equity, may obtain an injunction against Xxxxxx from any court having jurisdiction over the matter, restraining any further violation of this paragraph 6.
Appears in 1 contract
Samples: Employment Agreement (Bluefly Inc)
Non-Competition; Non-Solicitation. (a) In consideration During the term of this Agreement and for any period for which the Executive receives severance from the Corporation following the termination of this Agreement, the Executive agrees that, for the period ending one year after the termination of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any actionnot compete, directly or indirectly, to financewith the Corporation, guarantee or provide any other material assistance of its parent corporations, subsidiaries or affiliates, in the businesses of the Corporation, including, without limitation, the Corporation’s energy related businesses based upon its proprietary technology. Such restriction shall include, but not be limited to, ownership (direct or indirect, including without limitation by a member of the Executive’s family) of any interest in a business that is in competition (as described above) with the Corporation, and being an officer, shareholder, director, executive or contractor of or consultant to any Person engaged such business, whether or not for compensation; provided that, the foregoing shall not prohibit Executive from owning five percent (5%) or less of the outstanding equity securities of any corporation or entity, nor shall it prohibit him from owning any interest, whether as a creditor or stockholder, in the Triarco Business;
(iii) solicitCorporation. The Executive further agrees that, contact during the above period, he will not, in any capacity, except in connection with the performance of services hereunder, either separately, jointly or accept in association with others, directly or indirectly solicit or contact, with regard to a business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ competitor of the Company Corporation, any of the Corporation’s agents, suppliers, customers or during prospects, as shown by the Non-Competition Period; or
(iv) influence Corporation’s records, that were agents, suppliers, customers or attempt to influence any Person that is a contracting party with prospects of the Company Corporation at any time during the Non-Competition Period year immediately preceding the termination of employment hereunder, where the purpose of such solicitation or contact is to terminate compete with, or is intended to compete with, the Corporation. The Executive further agrees that, during the above period, he will not, in any written capacity, either separately, jointly or oral agreement in association with others, directly or indirectly, solicit any of the CompanyCorporation’s executives, employees, or consultants.
(b) The Executive shall neitherIf a court determines that the foregoing restrictions are too broad or otherwise unreasonable under applicable law, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business including with respect to which time or space, the court is hereby requested and authorized by the parties hereto to revise the foregoing restrictions to include the maximum restrictions allowed under the applicable law. The Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded expressly agrees that breach of the foregoing would result in the over-the-counter market, irreparable injuries to the extent Corporation, that the remedy at law for any such interest does not exceed 5% breach will be inadequate and that upon breach of this provision, the outstanding equity interests of such entityCorporation, (ii) investing in addition to all other available remedies, shall be entitled as a passive investor matter of right to seek injunctive relief in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 1 contract
Samples: Employment Agreement (Ener1 Inc)
Non-Competition; Non-Solicitation. (a) In consideration of this Agreementmy new employment with the Company, my being offered access to said Confidential Information and trade secret information, the Executive agrees thatCompany's investment in me, for and the other good and valuable consideration set forth herein, I agree that during the period ending of my employment with the Company and for a period of one (1) year thereafter, I shall not directly or indirectly, own, manage, operate, join, control, finance or participate in the ownership, management, operation, control or financing of, or be connected as an officer, director, employee, partner, principal, agent, representative, stockholder, consultant, investor or otherwise with, or use or permit my name to be used in connection with, any person, business or enterprise which directly engages in the business of manufacturing, assembly and distribution of new and rebuilt automotive brake products (the "COMPANY'S BUSINESS") which is now or hereafter located within Virginia, Maryland, the District of Columbia or Pennsylvania; PROVIDED, HOWEVER, that nothing contained in this Agreement shall prohibit such party from owning in the aggregate less than one percent (1%) of the publicly traded stock of any company. I further agree that during my employment with the Company and for a period of one (1) year after the termination of my employment for whatever reason, I shall not:
(a) directly or indirectly solicit, entice or induce any Customer (as defined below) to become a customer of any other person, firm or corporation with respect to the ExecutiveCompany's employment Business or to cease doing business with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period")its parent, the Executive will notsubsidiaries or affiliates, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the absent prior written consent of the CompanyBoard, serving as a director and I shall not approach any such person, firm or other advisor to corporation for such purpose or authorize or knowingly approve, encourage or assist the taking of such actions by any other Person.person, firm or corporation; or
(db) The Executive agrees that directly or indirectly solicit, recruit or hire any part-time or full-time employee, representative or consultant of the covenants contained in this Section 10 are reasonable covenants under Company or its parent, subsidiaries or affiliates to work for a third party other than the circumstancesCompany or its parent, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable subsidiaries or affiliates or engage in any respectactivity that would cause any employee, such court shall have representative or consultant to violate any agreement with the rightCompany or its parent, power and authority to excise subsidiaries or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amendedaffiliates.
Appears in 1 contract
Samples: Asset Sale and Purchase Agreement (Us Automotive Manufacturing Inc)
Non-Competition; Non-Solicitation. (a) In The Company shall provide Executive access to Confidential Information for use only during the Employment Period, and Executive acknowledges and agrees that the Company Group will be entrusting Executive, in 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, clients and customers and as an express incentive for the Company to enter into this AgreementAgreement and employ Executive, Executive has voluntarily agreed to the covenants set forth in this Section 10. Executive agrees thatand acknowledges that the limitations and restrictions set forth herein, for including geographical and temporal restrictions on certain competitive activities, are reasonable in all respects, do not interfere with public interests, will not cause Executive undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the period ending one year after Company Group’s Confidential Information, goodwill and legitimate business interests.
(b) During the termination Prohibited Period, Executive shall not, without the prior written approval of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will notBoard, directly or indirectly (whether as a sole proprietorindirectly, partner for Executive or venturer, stockholder, director, officer, employee, consultant on behalf of or in conjunction with any other capacity as principal person or agent or through entity of any Person, subsidiary or employee acting as nominee or agent):nature:
(i) conduct or engage in or be interested participate in (or prepare to engage in or associated with any Person which conducts or engages in participate in) the Triarco Business within the United StatesMarket Area, which prohibition shall prevent Executive from directly or indirectly: (A) owning, investing in, controlling, managing, operating, participating in, lending Executive’s name to, contributing to, providing assistance to or being an officer or director of, any person or entity engaged in or planning to engage in the Business in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise rendering services for or being affiliated with or engaged by, any person or entity engaged in, or planning to engage in, the Business in the Market Area in any capacity (with respect to this clause (B)) in which Executive’s customer or client relationships, duties or responsibilities are the same as or similar to the customer or client relationships, duties or responsibilities that Executive had on behalf of any member of the Company Group;
(ii) take appropriate or interfere with or attempt to appropriate or interfere with any actionBusiness Opportunity of, directly or indirectlyrelating to, to finance, guarantee or provide any other material assistance to any Person engaged member of the Company Group located in the Triarco BusinessMarket Area;
(iii) solicit, contact canvass, approach, encourage, entice or accept business induce any customer, vendor or supplier of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ member of the Company Group with whom Executive had contact (including oversight responsibility) or learned Confidential Information about during Executive’s employment with any member of the Non-Competition PeriodCompany Group to cease or lessen such customer’s, vendor’s or supplier’s business with any member of the Company Group or otherwise adversely affect such relationship, or attempt to do any of the foregoing; or
(iv) influence solicit, canvass, approach, encourage, entice or attempt to influence induce any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written employee or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf contractor of any other Person, solicit or entice away from the Company any officer, employee or customer member of the Company during Group to terminate his, her or its employment or engagement with any member of the term hereof or the Non-Competition Period nor engage, hire, employCompany Group, or induce the employment of hire or retain any such Person whether or not such officer, employee or customer would commit contractor. Notwithstanding the foregoing, nothing herein shall not limit Executive’s ability to accept employment and perform work with any person or entity where (x) the services provided by Executive to such person or entity are not, and do not directly or indirectly benefit any division or business of such person or entity that is, in competition with the Business or any other material business in which a breach member of contract by reason the Company Group has made a significant financial investment on or prior to the date of leaving service termination to be engaged in on or transferring businessafter such date and (y) Executive does not own more than 5% of the equity securities of such person or entity.
(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 restrictive provisions hereof aforementioned equitable relief shall not prohibit 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. Executive from (i) having an equity interest in further agrees that Executive will not challenge the securities reasonableness or enforceability of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entitycovenants set forth in this Section 10, and that Executive will reimburse the Company Group for all costs (iiincluding reasonable attorneys’ fees) investing as a passive investor incurred in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% connection with any action to enforce any of the outstanding equity interests provisions of such entity this Section 10 if Executive challenges the reasonableness or (iii) with the prior written consent enforceability of any of the Company, serving as a director or other advisor to any other Personprovisions of this Section 10.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances10, and further agrees that if 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 opinion of a event any arbitrator or court of competent jurisdictionjurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restraint is not reasonable in any respectrestrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, such court and this Agreement shall thereby be reformed.
(e) The following terms shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) In consideration While the Service Provider performs Services hereunder and for a period of this Agreement, the Executive agrees that, for the period ending one year after two years following the termination of the Executive's employment with the Company by the Company Service Provider’s engagement hereunder for Cause any reason or by the Executive without Good Reason (the "Non-Competition Period")for no reason, the Executive will Service Provider shall not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with without the prior written consent of the Company:
(a) For himself or on behalf of any other person or entity, serving directly or indirectly, either as principal, partner, stockholder, officer, director, member, employee, consultant, agent, representative or in any other capacity, own, manage, operate or control, or be concerned, connected or employed by, provide services to or consult with, or otherwise associate in any manner with, engage in or have a director financial interest in, any business which is competitive with the business of the Company Group in the golf industry (each, a “Restricted Activity”) within any territory in which the Company or other advisor its distributors sells its products or services, except that (A) nothing contained herein shall preclude the Service Provider from purchasing or owning securities of any such business if such securities are publicly traded, and provided that the Service Provider’s holdings do not exceed 1% of the issued and outstanding securities of any class of securities of such business and (B) nothing contained herein shall prohibit the Service Provider from engaging in a Restricted Activity for or with respect to any subsidiary, division or affiliate or unit (each, a “Unit”) of an entity if that Unit is not engaged in any business which is competitive with the business of the Company Group, irrespective of whether some other Person.Unit of such entity engages in such competition (as long as the Service Provider does not engage in a Restricted Activity for such other Unit);
(b) Either individually or on behalf of or through any third party, directly or indirectly, solicit, divert or appropriate or attempt to solicit, divert or appropriate, for the purpose of competing with the Company Group, any customers or patrons of the Company Group, or any prospective customers or patrons with respect to which the Company Group has developed or made a sales presentation (or similar offering of services);
(c) Either individually or on behalf of or through any third party, directly or indirectly, (i) solicit, entice or persuade or attempt to solicit, entice or persuade any employee of or consultant to the Company Group to leave the service of the Company Group for any reason, or (ii) employ, cause to be employed, or solicit the employment of, any employee of or consultant to the Company Group while any such person is providing services to the Company Group or within six months after any such person has ceased providing services to the Company Group; or
(d) The Executive agrees that Either individually or on behalf of or through any third party, directly or indirectly, interfere with, or attempt to interfere with, the covenants contained in this Section 10 are reasonable covenants under relations between the circumstances, Company Group and further agrees that if in any vendor or supplier to the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amendedCompany Group.
Appears in 1 contract
Non-Competition; Non-Solicitation. Executive and the Company agree to the non-competition and non-solicitation provisions of this Article V (i) to protect the trade secrets and Confidential Information of the Company disclosed or entrusted to Executive by the Company or created or developed by Executive for the Company and the business opportunities disclosed or entrusted to Executive by the Company and so as to enforce Executive’s obligations not to misuse or disclose the Company’s Confidential Information, (ii) to protect the business goodwill of the Company and (iii) as an express incentive for the Company to continue to employ Executive, enter into this Agreement, cause the General Partner to grant Executive Performance Units, Distribution Equivalent Rights and Restricted Units pursuant to the IPO Award Agreements by and between Employee and the General Partner dated as of the Effective Date (collectively, the “IPO Award Agreements”) and to provide the benefits herein.
(a) In consideration of this AgreementExecutive expressly covenants and agrees that during the Prohibited Period, the Executive agrees that, for the period ending one year after the termination other than on behalf of the Executive's employment with Company, Executive will refrain from carrying on or engaging, directly or indirectly, in the Company by Business in the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period")Restricted Area and, the accordingly, Executive will not, directly or indirectly within the Restricted Area during the Prohibited Period (whether as a sole proprietorother than on behalf of the Company), partner or venturerown, stockholdermanage, directoroperate, officerjoin, become an employee, independent contractor, consultant or advisor of, or otherwise provide services to, control or participate in any business, individual, partnership, firm, corporation or other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person entity which conducts or engages in carries on the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neitherfurther covenants and agrees that during the Prohibited Period, either on the Executive's own account Executive will not: (i) engage or in conjunction with employ, or on behalf of any other Person, solicit or contact with a view to the engagement or employment of, any person who is an officer or employee of the Company; or (ii) canvass, solicit, approach or entice away or cause to be canvassed, solicited, approached or enticed away from the Company any officer, employee of the Company’s customers or customer suppliers with whom or which Executive had contact on behalf of the Company during the term hereof or 12 months that precede the Non-Competition Period nor engage, hire, employ, or induce the employment Date of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business Termination or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company’s customers, serving as a director prospective customers, suppliers or other advisor to prospective suppliers about whom or which Executive received or learned of any other PersonConfidential Information during the 12 months that precede the Date of Termination.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) In consideration During the term of this Agreement, the Executive agrees that, letter agreement and for the a period ending of one year after following the termination or expiration of this letter agreement, Inception Surgical and Xxxxxxxx, shall not, without the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will notexpress written consent of Integra, directly or indirectly indirectly: (whether I) engage, anywhere within the geographical areas in which Integra is conducting business operations or providing services as of the date of termination or expiration of this letter agreement, in the tissue engineering business (the use of implantable absorbable materials, with or without a sole proprietorbioactive component, partner to attempt to elicit a specific cellular response in order to regenerate tissue or venturerto impede the growth of tissue or migration of cells) (the “Tissue Engineering Business”), stockholderneurosurgery business (the use of surgical instruments, directorimplants, officermonitoring products or disposable products to treat the brain or central nervous system) (“Neurosurgery Business”), employeeinstrument business (general surgical handheld instruments used for general purposes in surgical procedures) (“Instrument Business”), consultant reconstruction business (bone fixation devices for foot and ankle reconstruction procedures) (“Reconstruction Business”) or in any other capacity as principal line of business the revenues of which constituted at least 50% of Integra’s revenues during the six (6) month period prior to the termination or expiration of this letter agreement (together with the Tissue Engineering Business, Neurosurgery Business, Instrument Business and Reconstruction Business, the “Business”); (II) be or become a stockholder, partner, owner, officer, director or employee or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employof, or induce the employment of a consultant to or give financial or other assistance to, any such Person whether person or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business; (III) seek in competition with the Business to procure orders from or any do business with respect any customer of Integra; (IV) solicit, or contact with a view to the engagement or employment by any person or entity of, any person who is an employee of Integra; (V) seek to contract with or engage (in such a way as to adversely affect or interfere with the business of Integra) any person or entity who has been contracted with or engaged to manufacture, assemble, supply or deliver products, goods, materials or services to Integra; or (VI) engage in or participate in any effort or act to induce any of the customers, associates, consultants, or employees of Integra to take any action which the Executive obtained confidential or proprietary data or informationmight be disadvantageous to Integra; provided, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded however, that nothing herein shall prohibit Inception Surgical and Inception Surgical affiliates from owning, as passive investors, in the over-the-counter market, to the extent that such interest does aggregate not exceed more than 5% of the outstanding equity interests publicly traded stock of such entityany corporation so engaged and provided, (ii) investing as a passive investor further, however, that nothing set forth in this Section 7 shall prohibit Inception Surgical or Xxxxxxxx, from becoming an employee or agent of, or consultant to, any entity engaging that is engaged in the Triarco Business that is not so listed or traded, so long as such interest does Inception Surgical and Xxxxxxxx do not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to engage in any other Person.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if activities in the opinion of a court of competent jurisdiction, such restraint is not reasonable Business in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amendedcapacity for said entity.
Appears in 1 contract
Samples: Consulting Agreement (Integra Lifesciences Holdings Corp)
Non-Competition; Non-Solicitation. (a) In consideration Executive acknowledges that during the course of his employment with Technologies he will become familiar with the trade secrets and with other Confidential Information of the Company and its Subsidiaries and his services will be of a special, unique and extraordinary value to the Company and its Subsidiaries. Therefore, Executive agrees that, during the time he is employed by Technologies and for 1 year thereafter (the “Non-Compete Period”), Executive shall not directly or indirectly own, operate, manage, control, participate in, consult with, advise, provide services for, or in any manner engage in (including by himself or in association with any person, firm, corporate or other business organization or through an entity), any business engaged in the businesses in which the Company and its Subsidiaries is engaged or then proposes to engage within any geographical area in which the Company or its Subsidiaries engages in business. Nothing herein shall prohibit Executive from being a passive owner or not more that 5% of the outstanding stock of any class of a corporation which is publicly traded, or any other passive minority investment in any investment fund, limited partnership or similar entity, whether or not publicly traded, and so long as Executive has no active participation in the business of such entity.
(b) During the time Executive is employed by Technologies and for 1 year thereafter (the “Non-Solicitation Period”), Executive shall not, directly or indirectly through another entity, (i) induce or attempt to induce any employee of Technologies to leave the employ of Technologies, or in any way interfere with the relationship between Technologies and any employee thereof, including without limitation, inducing or attempting to induce any employee, group of employees or any other person or persons to interfere with the business or operations of Technologies, (ii) hire any person who was an employee of Technologies at any time during Executive’s employment period, or (iii) induce or attempt to induce, whether directly or indirectly, any customer, supplier, distributor, franchisee, licensee or other business relation of Technologies to cease doing business with Technologies, or in any way interfere with the relationship between any such customer, supplier, distributor, franchisee, licensee or business relation and Technologies.
(c) Executive agrees that: (i) the covenants set forth in this Section are reasonable in geographical and temporal scope and in all other respects, (ii) the Company would not have entered into this Agreement but for the covenants of Executive contained herein, and (iii) the covenants contained herein have been made in order to induce the Company to enter into this Agreement.
(d) If, at the time of enforcement of this Section, a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under the circumstances then existing, the parties agree that the courts shallbe allowed to revise the maximum duration, scope or area contained herein to cover the maximum period, scope and area permitted by law.
(e) Executive recognizes and affirms that in the event of his breach of the provisions of this Section 3 of this Agreement, money damages would be inadequate and the Company and its Subsidiaries would have no adequate remedy at law. Accordingly, Executive agrees that in the event of a breach or threatened breach by Executive of any of the provisions of this Section 3 of this Agreement, the Executive agrees thatCompany and its Subsidiaries, in addition and supplementary to other rights and remedies existing in its favor may apply to any court of law or equity of competent jurisdiction for the period ending one year after the termination specific performance and/or injunctive or other relief in order to enforce or prevent any violations of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on without posting a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director bond or other advisor to any other Personsecurity).
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) In consideration of this As an inducement to Purchaser to effect the Closing contemplated by the Purchase Agreement, including, without limitation, payment of a portion of the Executive Purchase Price to Restricted Party, and as a necessary measure to ensure that Purchaser realizes the goodwill and associated benefits of the Purchase (including, but not limited to Restricted Party’s Personal Goodwill) and the other transactions contemplated by the Purchase Agreement, Restricted Party agrees that, for as follows:
a. Commencing on the period Closing Date and ending on the date that is one (1) year after the termination of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason Closing Date (the "Non-Competition Period"“Term”), the Executive will Restricted Party shall not, and shall cause its Affiliates (collectively, together with Restricted Party, the “Restricted Persons”) not to, whether directly or indirectly indirectly, for itself, on behalf of, or in conjunction with, any other Person, in any capacity (whether as a sole proprietorprincipal, partner or venturerequityholder, stockholderpartner, director, officer, agent, executive, consultant, contractor, employee, consultant lender or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agentotherwise):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with than for or on behalf of any other PersonPurchaser, solicit or entice away from the Company or their respective Affiliates, (I) induce, solicit, hire, recruit or attempt to persuade any officerPerson who is an employee, employee consultant, contractor, officer or customer director of the Company as of the date hereof or who was an employee, consultant, contractor, officer or director of the Company during the term hereof one (1) year period immediately preceding the Closing Date (A) to terminate such Person’s employment or other relationship with Purchaser, the Non-Competition Period nor engageCompany or their respective Affiliates; or (B) not to establish an employment or other relationship with Purchaser, hirethe Company or their respective Affiliates, employin each case, or induce the employment of any such Person whether or not such officerrelationship is or would be pursuant to a written or oral agreement and whether or not such relationship is for a specific period of time or is at-will; or (II) employ or establish a business relationship with (or attempt to employ or establish a business relationship with), employee or customer would commit encourage or assist any Person to employ or establish a breach business relationship with, any Person who is an employee, consultant, contractor, officer or director of contract the Company as of the date hereof or who was an employee, consultant, contractor, officer or director of the Company during the one (1) year period immediately preceding the Closing Date; provided, however, that this Section 2(a)(i) shall not restrict or limit the Restricted Persons from soliciting or hiring any employee, consultant, contractor, officer or director or former employee, consultant, contractor, officer or director of Purchaser, the Company or their respective Affiliates (x) who responds to a general employment solicitation not specifically directed at such Person or (y) whose employment or relationship with Purchaser, the Company or their respective Affiliate, as applicable, was terminated (A) by reason Purchaser, the Company or such Affiliate, or (B) by the employee, if a period of leaving service or transferring businessat least one (1) year has lapsed from such termination.
(cii) The restrictive provisions hereof shall not prohibit other than for or on behalf of Purchaser, the Executive from Company or their respective Affiliates, (iA) having an equity interest in encourage any Person who is a Client, Prospective Client, vendor, supplier, licensor, or licensee of the securities Company as of the Closing Date or who was a Client, Prospective Client, vendor, supplier, licensor, or licensee of the Company during the one (1) year period immediately preceding the Closing Date to adversely affect, alter or change their relationship (contractual or otherwise) with Purchaser, the Company or their respective Affiliates, or otherwise induce or attempt to induce any entity engaged in the Triarco Business such Person to cease doing business, reduce or any otherwise limit its business with respect Purchaser, the Company or their respective Affiliates; or (B) solicit any Client or Prospective Client with a view to which providing them services in competition with the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or Business; or
(iii) other than for or on behalf of Purchaser, the Company or their respective Affiliates, compete with the prior written consent Business, or engage or participate in, or be financially interested in any Person engaged in any U.S. state, jurisdiction, or country where the Company carried on and/or conducted the Business as of the CompanyClosing Date (the “Territory”); provided, serving as a director or other advisor to any other Person.
(d) The Executive agrees however, that the covenants nothing contained in this Section 10 2(a)(iii) shall prevent the holding of equity securities for passive investment of less than two percent (2%) of any class of equity securities of a company whose securities are reasonable covenants under publicly traded on a national securities exchange or in a national market system.
(iv) disparage Purchaser or the circumstancesCompany in any way that could adversely affect the goodwill, and further agrees reputation or business relationships of Purchaser, or the Company with the public generally, or with any of its or their clients, customers, suppliers, licensees or other Person with whom the Company or Purchaser is doing business, or employees, independent contractors, consultants, or other Person providing services to the Company or Purchaser. For the purposes of this subclause, “disparage” shall mean any negative statement, whether written or oral, about Purchaser or the Company. The Parties agree that if this subclause does not prohibit Restricted Party from testifying truthfully in the opinion of a court of competent jurisdictionlaw, such restraint is not reasonable from filing a charge or complaint with, or from participating in, an investigation or proceeding conducted by the SEC, OSHA, EEOC, or any other federal, state or local agency charged with the enforcement of any employment laws or law enforcement matters, or from engaging in any respectother protected activities.
(v) For purposes of this Agreement, such court shall have “Client” means a Person for whom or which the right, power and authority Company performed services during the two (2) year period immediately prior to excise or modify such provision or provisions of these covenants which as the Closing Date. “Prospective Client” means Persons whose business was solicited by the Company during the two (2) year period immediately prior to such court shall appear not reasonable and to enforce the remainder thereof as so amendedClosing Date.
Appears in 1 contract
Samples: Equity Securities Purchase Agreement (CIPHERLOC Corp)
Non-Competition; Non-Solicitation. As additional consideration for this Award to the Grantee, the Grantee hereby agrees that if he or she engages for any reason, directly or indirectly, whether as owner, part-owner, shareholder, member, partner, director, officer, trustee, employee, agent or consultant, or in any other capacity, on behalf of himself or herself or any firm, corporation or other business organization other than the Company and its subsidiaries in any one or more of the following activities:
(a) In consideration at any time during his or her employment with the Company or any Subsidiary (the “Employment Period”) and for a period of this Agreement, the Executive agrees that, for the period ending one year after the termination of the Executive's his or her employment with the Company by or any Subsidiary no matter what the Company for Cause or by the Executive without Good Reason cause of that termination (the "Non“Post-Competition Employment Period"”), the Executive will notdevelopment, directly marketing, solicitation, or indirectly (whether as selling of any product or service that is competitive with the products or services of the Company, or products or services that the Company has under development or that are subject to active planning at any time during Grantee’s employment; provided that the restrictions set forth in this Section 10(a) for the Post-Employment Period shall not apply to any Grantee who is a sole proprietor, partner or venturer, stockholder, director, officer, California-based employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(iib) take any actionduring the Employment Period and/or Post-Employment Period, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business use of any client of the Company’s confidential or counterparty whom proprietary information, copyrights, patents or trade secrets which was acquired by the Company served or conducted business with or whose name became known to the Executive Grantee as a potential client or counterparty while in the employ an employee of the Company or during the Non-Competition Periodand its subsidiaries; or
(ivc) influence during the Employment Period and/or Post-Employment Period, any activity for the purpose of inducing, encouraging, or arranging for the employment or engagement by anyone other than the Company and its subsidiaries of any employee, officer, director, agent, consultant, or sales representative of the Company and its subsidiaries or attempt to influence engage any Person that is of them in a contracting party manner which would deprive the Company and its subsidiaries of their services or place them in a conflict of interest with the Company at and its subsidiaries; then (i) this Award shall terminate effective on the date on which he or she first engages in such activity, unless terminated sooner by operation of any time other term or condition of this Award or the Plan, and (ii) all shares of Stock issued to the Grantee pursuant to this Award shall become immediately due and payable by Grantee to the Company and if such shares of Stock have been sold by the Grantee, an amount equal to the proceeds from such sale shall become immediately due and payable by the Grantee to the Company. Grantee acknowledges and agrees that the activities set forth in this Section 10(a)-(c) are adverse to the Company’s interests, and that it would be inequitable for Grantee to benefit from this Award should Grantee engage in any such activities during the Non-Competition Period to terminate any written or oral agreement within one year after termination of his or her employment with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) The Executive . Grantee acknowledges and agrees that the covenants contained rights and remedies set forth in this Section 10 are reasonable covenants in addition to and are not intended to limit any other rights or remedies the Company may have available to it, both during and at any time after the termination of Grantee’s employment with the Company, including without limitation, any rights or remedies the Company may have under the circumstances, and further agrees ANSYS Intellectual Property Protection Agreement or other similar agreements. The Grantee may be released from his or her obligations as stated above only if the Committee (or its duly appointed agent) determines in its sole discretion that if such action is in the opinion best interests of a court the Company and its subsidiaries. Notwithstanding the foregoing, if the Grantee has an agreement with the Company in which any of competent jurisdictionthe provisions therein are inconsistent with the covenants set forth in this Section 10, the terms of such restraint is not reasonable in any respect, other agreement shall control and shall supersede the covenants of this Section 10 but only to the extent of such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amendedinconsistency.
Appears in 1 contract
Non-Competition; Non-Solicitation. (ai) In consideration The Company Shareholder hereby covenants and agrees that for a period commencing on the date hereof and ending on the third (3rd) anniversary of this Agreementthe Closing Date (such period, the Executive agrees that, for the period ending one year after the termination of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition “Restricted Period"”), the Executive will Company Shareholder shall not, and shall cause the Company Shareholder’s controlled Affiliates not to, directly or indirectly indirectly, (whether A) own any interest in, manage, control, participate in, consult with, render services for (as a sole proprietor, partner or venturer, stockholder, director, officer, employee, agent, broker, partner, contractor, consultant or otherwise) or be or become engaged or involved in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Restricted Business within the United States;
(ii) take any actionTerritory, directly including by being or indirectlybecoming an organizer, owner, co-owner, trustee, promoter, Affiliate, investor, lender, landlord, partner, joint venturer, stockholder, officer, director, employee, independent contractor, manager, salesperson, representative, associate, consultant, agent, broker, supplier, licensor, analyst or advisor of, to financeor with any Restricted Business within the Territory; (B) make any investment (whether equity, guarantee debt or otherwise) in, lend or otherwise provide any money or assets to, or provide any guaranty or other material financial assistance to any Restricted Business within the Territory; or (C) provide any information, assistance, support, product, technology or intellectual property to any Person engaged or involved in any Restricted Business within the Territory; provided, that (A) the ownership by the Company Shareholder (x) as a passive investment, in the Triarco Business;
aggregate of less than five percent (iii5%) solicit, contact of the outstanding shares or accept business other Securities of any client corporation or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized national securities exchange or quotation system or publicly traded in the on any nationally recognized over-the-counter marketmarket or (y) as a passive, indirect investment in any businesses solely through investment vehicles in which the Company Shareholder has no discretion as to the extent investments by such businesses (e.g., an investment fund) and (B) the business and operations of Alvogen Asia as carried on or proposed to be carried on as at the date of this Agreement, shall not, in each case, on its own, constitute a breach of this Section 5(c)(i); provided, that such interest in the case of the forgoing clause (B), for so long as Alvogen Asia does not exceed 5% of directly or indirectly engage in the outstanding equity interests of such entity, Restricted Business.
(ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) The Executive agrees that the covenants contained As used in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.Agreement:
Appears in 1 contract
Non-Competition; Non-Solicitation. The provisions of this Section 14 shall not be binding on the Executive (and shall become of no further force or effect) after a Change in Control shall have occurred. The Executive hereby covenants and agrees that during his employment with the Bank, and for a period equal to the lesser of (i) one year following his termination of employment with the Bank or (ii) the remaining term of this Agreement as of his termination of employment with the Bank, he shall not, without the written consent of the Bank, either directly or indirectly:
(a) In consideration solicit, offer employment to, or take any other action intended (or that a reasonable person acting in like circumstances would expect) to have the effect of this Agreement, the Executive agrees that, for the period ending one year after the termination causing any officer or employee of the Executive's Bank or the Company, or any of their respective subsidiaries or affiliates, to terminate his or her employment and accept employment or become affiliated with, or provide services for compensation in any capacity whatsoever to, any business whatsoever that competes with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.Bank;
(b) The Executive shall neithersolicit, either provide any information, advice or recommendation or take any other action intended (or that a reasonable person acting in like circumstances would expect) to cause any client, customer or other business relation (whether a current or a prospective client, customer or business relation) of the Bank or its affiliates, (i) to terminate an existing business or commercial relationship with the Bank or its affiliates or (ii) to reduce the amount of business that any client, customer or other business relation has customarily done or contemplates doing with the Bank or its affiliates, whether or not the relationship between the Bank or its affiliates and the client, customer, or other business relation was originally established, in whole or in part, through Employee’ s efforts, or in any way interfere with the relationship between the client, customer, or business relation, on the Executive's own account one hand, and the Bank or in conjunction with its affiliates, on the other hand. For purposes of this Section 14.1(b), a prospective client, customer or business relation means persons, firms, companies or corporations (including any subsidiaries, parents, franchisees, partners and/or joint ventures of the same) solicited by or on behalf of any other Personthe Bank or its affiliates, solicit employees, directors or entice away from representatives within one year prior to the Company any officer, employee or customer date of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment Executive’s termination of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring businessemployment.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having become an officer, employee, consultant, director, independent contractor, agent, sole proprietor, joint venturer, greater than 5% equity interest in the securities owner or stockholder, partner or trustee of any entity engaged in the Triarco Business savings association, savings and loan association, savings and loan holding company, credit union, bank or bank holding company, insurance company or agency, any mortgage or loan broker or any other financial services entity or business that competes with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% business of the outstanding equity interests of such entity, Bank or its affiliates and has headquarters or offices within twenty-five (ii25) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% miles of the outstanding equity interests of such entity or (iii) with the prior written consent location of the CompanyBank’s main offices in Amesbury, serving as a director Massachusetts or other advisor to any other PersonPortsmouth, New Hampshire.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 1 contract
Samples: Employment Agreement (Provident Bancorp, Inc. /MD/)
Non-Competition; Non-Solicitation. (a) In consideration For a period of this Agreementfive years from the Closing Date, the Executive agrees that, for the period ending one year after the termination of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will notno Seller shall, directly or indirectly (whether as a sole proprietor, partner on behalf of himself or venturer, stockholder, director, officer, employee, consultant or in on behalf of any other capacity as principal Person (other than on behalf of Buyer, Parent or agent or through any Personan Affiliate thereof), subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages a business in the Triarco Business within continental United States of America, which is the United States;
(ii) take any action, directly same as or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known substantially similar to the Executive Business as conducted at the Closing, including as a potential client shareholder, consultant, partner, joint venturer, owner, lender, beneficiary, principal, member, director, manager, officer or counterparty while in the employ employee, of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with conducting such business, (ii) solicit or knowingly induce or participate in any way in the Company solicitation or inducement of any individual who is or was, at any time during the Non12-Competition Period month period preceding the Closing, a Business Employee, officer, consultant or contractor (including the Independent Contractors) of any Company to (A) terminate or otherwise materially and adversely alter his or her employment or relationship with such Company or (B) offer employment to or hire any such individual (provided, however, that nothing herein shall be deemed to prohibit any Seller (x) from placing advertisements in newspapers, electronically or other media of general circulation advertising employment or independent contractor opportunities; (y) from initiating a search by an executive recruiting firm where such search is not directed at such employees or independent contractors of Buyer or any of its Affiliates or (z) from hiring or engaging individuals who approach Seller regarding employment or independent contractor opportunities on his or her own accord without any direct or indirect inducement by Seller) (iii) solicit the business of, or trade with, any Person that is (or was at any time during the 12-month period preceding the Closing) a customer of any Company with respect to the services provided by such Company for the purpose of engaging in the Business, (iv) knowingly induce, or otherwise solicit, any customers with whom any Company has done business during the 12-month period prior to the Closing to terminate or otherwise curtail or materially impair their business relationship with such Company or (v) make, publish, communicate or knowingly take any written action to disparage Parent, Buyer, the Companies or oral agreement with the Companyany of their respective Affiliates or their respective direct or indirect officers, directors, employees, equityholders, agents, products or services.
(b) The Executive Notwithstanding the foregoing, nothing contained in this Agreement shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit prohibit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive Seller from (i) having an equity interest in the securities purchasing and holding as a passive investment less than 5% of any entity engaged in class of the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed issued and outstanding and publicly traded (on a nationally-recognized national or regional securities exchange or quotation system or traded in the over-the-counter market) security of any corporation, to partnership or other business entity that conducts a business in competition with Buyer or the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, Business or (ii) investing as in investment funds, partnerships or similar entities in which a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest Seller does not exceed 5% have a controlling interest or otherwise possess, directly or indirectly, control or influence over the investment decisions of the outstanding equity interests management of such entity entity.
(c) Each Seller agrees to the covenants contained in this Section 6.3 in partial consideration for the Purchase Price set forth in Article II. Each Seller agrees that any Claim for breach of this Section 6.3 against such Seller may be brought by Buyer or (iii) with the prior written consent any of the Company, serving as a director or other advisor to any other Personits Affiliates.
(d) The Executive Each Seller acknowledges and agrees that the covenants contained in this Section 10 6.3 are fair and reasonable and of a special unique character which gives them peculiar value and exist in order to protect Buyer’s investment in the Business and the Equity Interests purchased under this Agreement, including the protection of the goodwill transferred herewith, and that Buyer would not have entered into this Agreement without such covenants being made. However, if any such covenants shall be determined by any court to be invalid by reason of their duration or geographical scope, or both, as the case may be, the Parties intend for the covenants to be modified by the court, and expressly request that the court make such modification, so that such covenants shall be reduced to the longest duration or greatest geographic scope, or both, which will cure such invalidity. By agreeing to this contractual modification prospectively at this time, the Parties intend to make this provision enforceable under the circumstancesLaw or Laws of all applicable states and other applicable jurisdictions so that the entire agreement not to compete and this Agreement as prospectively modified shall remain in full force and effect and shall not be rendered void or illegal. Each Seller further acknowledges that monetary damages alone may not be an adequate remedy for any breach of any of the covenants contained in this Section 6.3, and further accordingly, such Seller expressly agrees that if that, in the opinion of a addition to all other remedies which Buyer or its Affiliates may have, they may be entitled to injunctive relief, both preliminary and permanent, in any court of competent jurisdiction.
(e) For a period of five years from the Closing Date, such restraint is not reasonable in Buyer, Daseke Holdco, Parent and their Affiliates shall not, directly or indirectly, make, publish, communicate or knowingly take any respect, such court shall have the right, power and authority action to excise disparage any Seller or modify such provision or provisions any of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amendedtheir respective Affiliates.
Appears in 1 contract
Non-Competition; Non-Solicitation. Executive acknowledges and understands that, in view of Executive’s position with the Corporation and/or the Bank, Executive will be afforded access to Confidential Information and have intimate knowledge of affairs of the Corporation and/or the Bank. Executive therefore agrees that during the course of Executive’s employment with the Corporation and/or the Bank and for a period of 12 months after Executive’s employment with the Corporation and/or the Bank ends (aregardless of the reason therefor) In consideration (the “Restricted Period”), Executive will not, without the express prior written consent of the Corporation and/or the Bank:
(i) directly or indirectly whether as owner, partner, shareholder, director, consultant, agent, employee, co-venturer or otherwise, engage, participate or invest in any Competing Business (as defined below). For purposes of this Agreement, a “Competing Business” means any business or enterprise engaged, anywhere in the Executive agrees that“Competitive Territory” (as defined below) in (A) banking or lending activities, for the period ending one year after the termination of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason accepting deposits, (the "Non-Competition Period")B) providing financial services or financial advice, the Executive will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in C) any other capacity activities in which the Corporation and/or the Bank or any of their respective Affiliates (as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(idefined below) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any actionengaged, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in during Executive’s employment with the Triarco Business;
(iii) solicit, contact or accept business Corporation and/or the Bank. “Competitive Territory” shall mean an area that is within a 100 mile radius of any client branch or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ office of the Company Corporation, the Bank and/or any of their respective Affiliates that is or was in existence during Executive’s employment with the Corporation and/or the Bank or any location where the Corporation, the Bank and/or any of their respective Affiliates had planned to establish a branch or office during the Non-Competition Period; or
(iv) influence or attempt 12 months prior to influence any Person that is a contracting party with Executive’s termination of employment. Notwithstanding the Company at any time during foregoing, the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof foregoing shall not prohibit the any investment by Executive from (i) having an equity interest in the securities publicly traded stock of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% company representing less than one percent of the outstanding equity interests stock of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.company;
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) a. In consideration of this Agreementthe offer of employment, severance benefits and Options to be granted to Xxxxx hereunder, and for other good and valuable consideration, the Executive agrees thatreceipt and sufficiency of which are hereby acknowledged, for the period ending one year after the termination of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive Term, Xxxxx shall neithernot, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with without the prior written consent of the Company, serving anywhere in the world, directly or indirectly, (i) enter into the employ of or render any services to any Competitive Business; (ii) engage in any Competitive Business for her own account; (iii) become associated with or interested in any Competitive Business as an individual, partner, shareholder, creditor, director, officer, principal, agent, employee, trustee, consultant, advisor or in any other relationship or capacity; (iv) employ or retain, or have or cause any other person or entity to employ or retain, any person who was employed or retained by the Company while Xxxxx was employed by the Company; or (v) solicit, interfere with, or endeavor to entice away from the Company, for the benefit of a director Competitive Business, any of its customers or other advisor persons with whom the Company has a contractual relationship. For purposes of this Agreement, a “Competitive Business” shall mean any person, corporation, partnership, firm or other entity which sells or has plans to sell ten (10) or more brands of luxury or high-end designer apparel and/or fashion accessories at prices that are consistently discounted to manufacturer’s suggested retail prices. However, nothing in this Agreement shall preclude Xxxxx from investing her personal assets in the securities of any corporation or other Personbusiness entity which is engaged in a Competitive Business if such securities are traded on a national stock exchange or in the over-the-counter market and if such investment does not result in her beneficially owning, at any time, more than three percent (3%) of the publicly-traded equity securities of such Competitive Business. For purposes of this agreement, the “Non-Competition Term” shall mean a period beginning upon the commencement of the Employment Term and ending on the one (1) year anniversary of the end of the Employment Term.
(d) The Executive agrees b. Xxxxx and the Company agree that the covenants of non-competition and non-solicitation contained in this Section 10 paragraph 6 are reasonable covenants under the circumstances, and further agrees agree that if if, in the opinion of a any court of competent jurisdiction, such restraint is covenants are not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such the court shall appear not reasonable and to enforce the remainder thereof of these covenants as so amended. Xxxxx agrees that any breach of the covenants contained in this paragraph 6 would irreparably injure the Company. Accordingly, Xxxxx agrees that the Company, in addition to pursuing any other remedies it may have in law or in equity, may obtain an injunction against Xxxxx from any court having jurisdiction over the matter, restraining any further violation of this paragraph 6.
Appears in 1 contract
Samples: Employment Agreement (Bluefly Inc)
Non-Competition; Non-Solicitation. (a) In consideration of this Agreement, the Executive agrees that, for During the period ending beginning on the “Effective Date,” as that term is defined in the Transitional Compensation Agreement of even date herewith, and continuing while Executive is serving as an executive officer of the Company and for one year following the termination of Executive’s employment with the Company, any successor thereto, and its or their subsidiaries (the “Noncompetition Period”), if such termination of employment occurs within one year after the termination Effective Date and Executive becomes entitled to receive the “Non-Compete Payment” as defined in Section 5 of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period")Transitional Compensation Agreement, the Executive will not, within fifty (50) miles of the Company’s headquarters in Rockford, Illinois or within twenty-five (25) miles of any office or branch location in which the Company was conducting business as of the Effective Date, engage in “Competition” with the Company. For purposes of this Confidentiality and Non-Competition Agreement, Competition by Executive shall mean Executive’s:
(i) engaging in, including without limitation consulting or start-up activities for Executive’s own account or any third party, the business of commercial banking (including trust and asset management and mortgage banking); or
(ii) becoming interested in, or otherwise directly or indirectly (whether being employed by or acting as a sole proprietorconsultant or lender to, partner or venturerrender any services to, stockholder, or being a director, officer, employee, consultant principal, agent, stockholder, manager, member, owner or partner of, employer of, or permitting his name to be used in connection with the activities of any other business or organization (a “Competing Business”) which engages in, or is preparing to engage in, the business of commercial banking (including trust and asset management and mortgage banking); provided, however, that, notwithstanding the foregoing, it shall not be a violation of this Section 2(a) for Executive to become the registered or beneficial owner of up to two(2%) percent of any class of the capital stock of a Competing Business registered under the Securities Exchange Act of 1934, as amended, provided that Executive does not otherwise participate in the business of such corporation.
(b) during the Noncompetition Period, Executive will not in any other capacity as principal manner, directly or agent or through any Person, subsidiary or employee acting as nominee or agent):indirectly:
(i) conduct solicit (or engage in cause, or authorize, to be interested in solicited), divert or associated otherwise attempt to obtain the business of any person who is, or has at any time within three years prior to the date of such action been, a customer, supplier, licensee or business relation of the Company for any purpose which is competitive with any Person which conducts or engages in the Triarco Business within the United StatesCompany’s business;
(ii) take intentionally disturb or attempt to disturb in any action, directly or indirectly, to finance, guarantee or provide adverse respect any other material assistance to business relationship between any Person engaged in person and the Triarco BusinessCompany;
(iii) solicit, contact or accept business of solicit from any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ customer of the Company Company, or from any known potential customer of the Company, business which has been the subject of a known written or oral bid, offer or proposal by the Company, or of substantial preparation with a view to making such a bid, proposal or offer, in any case, during the Nontwo-Competition Period; oryear period immediately preceding the termination for any reason whatsoever of his service with the Company;
(iv) influence seek or attempt to influence persuade, induce or encourage any Person that is a contracting party with director, officer, employee, consultant, advisor or other agent of the Company to discontinue his or her status or employment therewith or to become employed or otherwise engaged in a Competing Business; and
(v) solicit or employ, or otherwise hire or engage as an employee, independent contractor, consultant, advisor or otherwise, any person at any time during within 12 months following the Non-Competition Period to terminate any written date of cessation of employment of such person or oral agreement the termination of such person’s other status, as the case may be, with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 1 contract
Samples: Transitional Compensation Agreement (Amcore Financial Inc)
Non-Competition; Non-Solicitation. (a) In consideration of this AgreementDuring Employee’s employment with the Company, the Executive agrees that, and for the period ending one (1) year after following the termination of Employee’s employment by either Employee or the Executive's employment with Company, regardless of the Company by the Company reason for Cause or by the Executive without Good Reason such termination (the "“Non-Competition Period"”), the Executive Employee will not, not directly or indirectly (whether as a sole proprietorpartner, partner or venturerconsultant, stockholder, director, officeragent, employee, consultant co-venturer, greater than two percent owner or in any other capacity as principal or agent otherwise or through any Person, subsidiary other Person (as hereafter defined) be engaged in any business or employee acting activity which is competitive with the Business (as nominee or agent):
(ihereafter defined) conduct or engage of the Company in or be interested any part of the world in or associated with any Person which conducts or engages the Company is at the time of Employee’s termination engaged in the Triarco Business within the United States;
(ii) take any action, selling its products directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive During Employee’s employment with the Company, and for one (1) year following the termination of Employee’s employment by either Employee or the Company, regardless of the reason for such termination (the “Non-Solicitation Period”), (i) Employee, except as part of Employee’s duties to the Company, shall neithernot directly or indirectly, either on the Executive's for Employee’s own account or in conjunction with benefit or on behalf of any other Personperson or entity, solicit solicit, call on, service or entice away from enter into any agreement with any customer with whom the Company did any officerbusiness within the 12 month period preceding the termination of Employee’s employment with the Company, and with whom Employee (including any member of the executive team) had contact, for whom Employee (including any member of the executive team) had supervisory responsibility or about whom Employee had access to and used Proprietary Information; (ii) Employee shall not, directly or indirectly, for Employee’s own benefit or on behalf of any other Person or entity, solicit, induce or encourage any employee or customer of the Company during with whom Employee (including any member of the term hereof executive team) had material contact to leave such employee’s employment with the Company or to cease such employee’s relationship with the Non-Competition Period nor engageCompany; and (iii) Employee shall not, hiredirectly or indirectly, employfor Employee’s own benefit or on behalf of any other Person or entity encourage (or assist another in encouraging) any supplier, business partner, or induce vendor of the Company with whom Employee had any contact on behalf of the Company within the last 12 months of Employee’s employment of any such Person whether with the Company to terminate or diminish its relationship with the Company. This paragraph 9(b) shall not such officer, employee prohibit Employee from working with customers if Employee did not solicit the customers or if the customer would commit a breach of contract by reason of leaving service or transferring businessvoluntarily chose to leave and seek services from Employee and Employee is otherwise complying with Employee’s obligations under this CIIP Agreement.
(c) The restrictive provisions hereof For purposes of this paragraph 9, the term “Company” shall not prohibit the Executive from (i) having an equity interest in the securities of include any entity engaged in the Triarco Business person controlling, under common control with or any business with respect to which the Executive obtained confidential or proprietary data or informationcontrolled by, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) The Executive agrees that For purposes of this paragraph 9, the covenants contained in this Section 10 are reasonable covenants under the circumstancesCompany’s “Business” shall include: (a) developing and selling software-driven technology and printing solutions for high growth markets including food service technology, point of sale automation, and casino and gaming; and (b) providing complete back-end solutions for restaurants, convenience stores and other food service establishments. The Company’s “Business” further agrees that if includes any expansion over time to the products the Company sells and/or distributes and/or any additional services it provides.
(e) For purposes of this paragraph 9, the term “Person” shall mean an individual or corporation, association or partnership in the opinion of a court of competent jurisdiction, such restraint is not reasonable in estate or trust or any respect, such court shall have the right, power and authority to excise other entity or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amendedorganization.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) In consideration of this Agreement, During the Executive agrees that, Term and for the period ending one year after the termination of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "applicable “Post-Term Non-Competition Compete Period"” (as defined below), neither any Manager (to the Executive will notextent permitted by applicable law), nor Management Company, nor any of its Affiliates shall, without the prior written approval of Mediaco, directly or indirectly (through an entity controlled by any of them, whether as an owner, partner, shareholder, member of a sole proprietorlimited liability company, partner guarantor, surety, co-venturer or venturerotherwise, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
either (i) conduct engage or engage participate in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take make any actioninvestment, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco debt or equity securities (an “Investment”) of, any business that owns or operates any broadcasting business in New York City (each, a “Competitive Business;
”); provided, however, that (iiix) solicitManagement Company, contact the Managers or accept business their Affiliates shall be permitted to make Investments in securities of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as publicly traded companies engaging in a potential client or counterparty while Competitive Business that in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment aggregate do not constitute more than [***] of any such Person whether or not such officerpublicly traded company’s total outstanding equity, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
and (cy) The restrictive provisions hereof this restriction shall not prohibit apply to the Executive from (i) having an equity interest in the securities ownership or operation of any entity engaged in radio station owned or operated by Management Company or its Affiliates as of the Triarco Business or any business Effective Date. The “Post-Term Non-Compete Period” shall mean (1) with respect to which the Executive obtained confidential Management Company and any of its Affiliates, a period of [***] following the Term and (2) with respect to any Manager subject to an employment agreement with Management Company (other than Managers residing in a state that prohibits non-competition or proprietary data similar agreements as applicable to such Managers), a period of [***] following the earlier of (A) termination of such Manager’s employment relationship with Management Company or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in any of its Affiliates and (B) the over-the-counter market, to the extent that such interest does not exceed 5% end of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees Term; provided that if in the opinion such Manager is hired by Management Company or any of a court of competent jurisdictionits Affiliates during such Manager’s Post-Term Non-Compete Period, such restraint is not reasonable Post-Term Non-Compete Period shall end and a new Post-Term Non-Compete period shall begin in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amendedaccordance with this clause (2).
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) In consideration of this AgreementSubject to Section 2(d), the Executive agrees that:
(i) During the Restrictive Period, Executive will not, directly or indirectly in any Relevant Capacity, own, manage, operate, control, be employed by, or participate in the ownership, management, operation or control of, or carry on, be engaged in, provide services to or have an economic interest in any Competing Business within the Restricted Territory in any capacity in which Executive would perform similar duties to those performed while employed by the Company and will not induce or assist any Relevant Person to do so or take any such action through or by means of any Relevant Person.
(ii) During the Restrictive Period:
(A) Executive will not, directly or indirectly in any Relevant Capacity, and will not induce or assist any Relevant Person, within the Restricted Territory, to:
(I) solicit or induce, directly or indirectly, any Person for the period ending one year after purpose (which need not be the sole or primary purpose) of (x) causing any funds or investment accounts with respect to which any Company Group Entity provides investment or other services to be withdrawn from such investment or other services, or (y) causing any existing or prospective investors in Company, its affiliated entities, or development partnerships related thereto to refrain from, withdraw, or cease their investments therein (or otherwise attempt to cause any of the foregoing to occur); or
(II) otherwise intentionally divert or take away (or seek to divert or take away) any funds or investment accounts with respect to which the Company Group Entities provide investment or other services; and
(B) Executive will not, directly or indirectly in any Relevant Capacity, and will not induce or assist, directly or indirectly, any Relevant Person to, solicit or induce any limited partner or other investor in any Company Group Entity for the purpose (which need not be the sole or primary purpose) of participating in any Competing Business with Executive or any Relevant Person, in each case within the Restricted Territory; and
(C) Executive will not, directly or indirectly in any Relevant Capacity, and will not induce or assist, directly or indirectly, any Relevant Person to, solicit, hire, recruit or partner with, or seek to solicit, hire, recruit or partner with (or directly or indirectly assist others, including, without limitation, headhunters, recruiters or other Persons involved in a "lift out," in soliciting, hiring, recruiting or partnering with), any Relevant Employee to join, work for or otherwise become associated with any Competing Business whether as principal, partner, director, employee, employer, consultant or agent or in any other capacity within the Restricted Territory; provided, however, that Section 2(c)(ii)(C) shall not prohibit the Executive (following the termination of the Executive's employment with with, or arrangement to provide services to, the Company by Group Entity) from hiring any Relevant Employee that responds to general advertisement (not specially targeted at the Company Relevant Employees) for Cause employment or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will not, directly or indirectly (whether as constitutes a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the CompanyFamily Member.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 1 contract
Samples: Restrictive Covenant Agreement (Alpine Summit Energy Partners, Inc.)
Non-Competition; Non-Solicitation. (ai) In consideration During the Term and for a period of this Agreementeighteen (18) months following the date on which the Executive ceases to be employed by or provide services to the Company (the “Restricted Period”), the Executive agrees thatnot to, for the period ending one year after the termination of and shall cause Executive’s affiliates not to, either alone or in conjunction with the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will not’s affiliates, directly or indirectly own, manage, operate, control, be employed by (whether as a sole proprietor, partner or venturer, stockholder, director, officer, an employee, consultant consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or other entity, in whatever form, engaged in any business area or service offering in which the Company is currently engaged or in any other capacity as principal or agent or through any Personwhich the Company has plans to engage, subsidiary or employee acting as nominee or agent):
including for the avoidance of doubt home health risk assessment and care management services (ithe “Restricted Business”) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take . Notwithstanding the foregoing, the Executive may directly or indirectly own, solely as an investment, securities of any actionperson traded on any national securities exchange, provided that Seller is not a controlling person of, or a member of a group which controls, such person and does not, directly or indirectly, to finance, guarantee own five percent (5%) or more of any class of securities of such person. The Company agrees (i) that the Executive may be employed by or provide services to an entity that has a business unit in the Restricted Business provided that he does not provide any other material assistance services to the business unit, or in any way related to the Restricted Business and complies with his obligations with respect to the Company’s Confidential Information, and solely to the extent and during such time the revenues generated with respect to the Restricted Business do not represent more than 17.5% of such entity’s total revenue and (ii) the Executive may become employed by or provide services to any Person private equity fund, hedge fund, or other investment vehicle that invests in or holds a position in a Restricted Business, provided that his services to such investment vehicle or its managers or advisors do not involve investment or management decisions with respect to the Company or any of such investment vehicle’s portfolio companies engaged in the Triarco Business;Restricted Business and he does not use any of the Company’s Confidential Information. The Company agrees that the Executive shall not be subject to any noncompetition or nonsolicitation agreements that are of greater scope or longer duration than is specified in this Agreement, whether as a condition of the Incentive Units or otherwise.
(ii) During the Restricted Period the Executive agrees not to, and shall cause the Executive’s affiliates not to, either alone or in conjunction with the Executive’s affiliates, directly or indirectly induce or attempt to induce any C-level executive officer of the Company or any of its subsidiaries (each, a “Senior Restricted Employee”) or any employee, independent contractors, customers, suppliers or other business suppliers of the Company or any of its subsidiaries that is not a Senior Restricted Employee (each, a “Restricted Party”) to leave the employ or service of the Company or any of its subsidiaries, hire any Senior Restricted Employee or Restricted Party, or in any way interfere with the employee relationship between the Company or any of its subsidiaries and any such Senior Restricted Employee or Restricted Party.
(iii) solicit, contact or accept business The Executive acknowledges and agrees that the length of any client or counterparty whom the Company served or conducted business with or whose name became known covenants set forth in this Section 5(b) are reasonable and narrowly drawn to impose no greater restraint than is necessary to protect the Executive as a potential client or counterparty while in the employ goodwill of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Companyand their respective subsidiaries.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 1 contract
Non-Competition; Non-Solicitation. A. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its affiliates and accordingly agrees as follows:
B. During the Employment Term and for a period of one year following the date Executive ceases to be employed by the Company or an affiliate (aor for a period of two (2) In consideration years if Executive ceases to be employed by the Company or an affiliate by reason of employment termination pursuant to Section IV.A. above) (the "Restricted Period"), Executive will not, whether on Executive's own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever ("Person"), directly or indirectly solicit or assist in soliciting in competition with the Company, the business of any client or prospective client:
1. with whom Executive had personal contact or dealings on behalf of the Company during the one year period preceding Executive's termination of employment;
2. with whom employees reporting to Executive have had personal contact or dealings on behalf of the Company during the one year immediately preceding the Executive's termination of employment; or
3. for whom Executive had direct or indirect responsibility during the one year immediately preceding Executive's termination of employment.
C. During the Restricted Period, Executive will not directly or indirectly:
1. engage in any business that materially competes with any business of the Company or its affiliates (including, without limitation, businesses which the Company or its affiliates have specific plans to conduct within twelve months from the effective of the termination and as to which Executive is personally aware of or should be personally aware of such planning in the future and as to which Executive is aware of such planning) in any geographical area that is within 100 miles of any geographical area where the Company or its affiliates manufactures, produces, sells, leases, rents, licenses or otherwise provides its products or services and over which Executive had responsibilities (a "Competitive Business");
2. enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person) who or which engages in a Competitive Business;
3. acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; or
4. interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of this Agreement) between the Company or any of its affiliates and customers, clients, suppliers, partners, members or investors of the Company or its affiliates.
D. Notwithstanding anything to the contrary in this Agreement, Executive agrees thatmay, for directly or indirectly own, solely as an investment, securities of any Person engaged in the period ending business of the Company or its affiliates that is publicly traded on a national stock exchange or on the over-the-counter market if Executive (i) is not a controlling person of, or a member of a group which controls, such person or (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person.
E. 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:
1. solicit or encourage any employee of the Company or its affiliates to leave the employment of the Company or its affiliates; or
2. hire any such employee who was employed by the Company or its affiliates as of the date of Executive's termination of employment with the Company or who left the employment of the Company or its affiliates coincident with, or within one year after prior to or after, the termination of the Executive's employment with the Company by Company.
F. During the Company for Cause or by the Executive without Good Reason (the "Non-Competition Restricted Period"), the Executive will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, solicit or encourage to finance, guarantee or provide any other material assistance cease to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business work with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence its affiliates any Person that is a contracting party consultant then under contract with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Companyits affiliates.
(b) The G. It is expressly understood and agreed that although Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from and agreed that although Executive and the Company any officer, employee or customer of consider the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) The Executive agrees that the covenants restrictions contained in this Section 10 are reasonable covenants under the circumstancesV to be reasonable, and further agrees that if in the opinion of a final judicial determination is made by a court of competent jurisdictionjurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which this Agreement shall not be rendered void but shall be deemed amended to apply as to such court shall appear not reasonable maximum time and territory and to enforce such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, 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 remainder thereof as so amendedenforceability of any of the other restrictions contained herein.
Appears in 1 contract
Samples: Employment Agreement (Integrated Electrical Services Inc)
Non-Competition; Non-Solicitation. (a) In consideration of this Agreement, the Executive agrees that, for the period ending one year after the termination of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "At any time during Participant’s Non-Competition Period"), the Executive will Participant shall not, directly for himself or indirectly (whether as a sole proprietor, partner herself or venturer, stockholder, director, officer, employee, consultant or in on behalf of any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any actionparticipate in, directly or indirectly, any Competing Business in any country in which the Company or any of its Subsidiaries or licensees operates or conducts business as of such time (or with respect to financethe period after the date of the termination of Participant’s employment, guarantee as of such date); provided that, nothing in this sentence shall restrict Participant from passive ownership of three (3) percent or provide any other material assistance to any Person engaged in less of the Triarco Business;
(iii) solicit, contact or accept business publicly traded securities of any client or counterparty whom Person. During Participant’s employment with the Company served and/or its Subsidiaries and for 1 year thereafter, Participant shall not (i) induce or conducted business with attempt to induce any employee of the Company or whose name became known its Subsidiaries to the Executive as a potential client or counterparty while in leave the employ of the Company or during the Non-Competition Period; or
(iv) influence its Subsidiaries, or attempt to influence in any Person that is a contracting party way interfere with the relationship between the Company or its Subsidiaries and any employee thereof, (ii) hire directly or through another entity any person who was an employee (other than clerical or administrative support personnel) of the Company or its Subsidiaries at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) induce or attempt to induce any customer, supplier, licensee or other business relation of the Company or its Subsidiaries to cease doing business with the prior written consent of Company or its Subsidiaries, or in any way interfere with the Companyrelationship between any such customer, serving as a director supplier, licensee or other advisor business relation and the Company or its Subsidiaries (including, without limitation, making any negative statements or communications concerning the Company or its Subsidiaries); provided that, clauses (i) and (ii) above shall not apply with respect to any other Personperson solicited or employed after the date that is twelve (12) months after the date on which such person’s employment with the Company and its Subsidiaries is terminated.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 1 contract
Samples: Nonqualified Stock Option Agreement (Toys R Us Inc)
Non-Competition; Non-Solicitation. The Executive acknowledges that his employment with the Company will, of necessity, provide him with specialized, unique knowledge and confidential information and that, in light of the competitive nature of the Company's business, the Company could be harmed if such knowledge and information were used in competition with the Company. The Executive further acknowledges that the Company would not enter into this Agreement and undertake the substantial obligations under this Agreement without the Executive's agreement to the following provisions of this Section 6:
(a) In consideration During the Restricted Period (as defined below) he will not, directly or indirectly, as an officer, director, stockholder, partner, associate, employee, consultant, owner, agent, co-venturer or otherwise, become or be interested in or be associated with any other corporation, firm or business engaged in any business that competes with the Company. The Executive's ownership, directly or indirectly, of not more than three percent (3%) of the issued and outstanding stock of any corporation or other entity, the shares of which are traded on a national securities exchange or the Nasdaq Stock Market, shall not in any event be deemed to be a violation of the provisions of this AgreementSection 6(a).
(b) During the Restricted Period, the Executive agrees thatshall not call upon, for solicit, divert or take away, or attempt to call upon, solicit, divert or take away, business of a type the period ending one year after same or similar to the business as conducted by the Company prior to the date of termination of the Executive's employment with the Company by from any of the Customers of the Company for Cause upon whom he called or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will not, directly whom he solicited or indirectly (whether as a sole proprietor, partner to whom he catered or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name he became known to the Executive as a potential client or counterparty while in acquainted after entering the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof Executive acknowledges and agrees that during the time of his employment with the Company, he will gain valuable information about the identity, qualifications and on-going performance of the employees of the Company. During the Restricted Period, the Executive shall not prohibit the Executive from (i) having an equity interest in the securities of hire, employ, offer employment to, or seek to hire, employ or offer employment to, any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests Company's senior level employees with whom he had contact prior to such termination of such entity, employment or (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed solicit or traded, so long as encourage any such interest does not exceed 5% of the outstanding equity interests of such entity senior level employee to seek or (iii) accept employment with the prior written consent of the Company, serving as a director or other advisor to any other Personperson or entity.
(d) The Executive agrees represents and warrants that the covenants contained knowledge, skills and abilities he currently possesses are sufficient to permit him, in the event of his termination of employment hereunder for any reason, to earn a livelihood satisfactory to himself without violating any provision of this Agreement.
(e) For the purposes of this Section 10 are reasonable covenants under 6, "Restriction Period" shall mean the circumstances, period beginning on the date hereof and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.ending with:
Appears in 1 contract
Non-Competition; Non-Solicitation. a. For a period of one (a1) In consideration year following the Separation Date, Executive shall not, anywhere in the United States of America or its territories, engage in the following conduct, whether direct or indirect, on Executive’s own behalf or on behalf of, or in conjunction with, any person, partnership, corporation, or entity:
i. own, manage, operate, control, be employed by, participate in, engage in, invest in, lend money to, render any services in any capacity for, assist, have any financial interest in, permit Executive’s name to be used in connection with, or be connected in any manner with the ownership, management, operation, or control of, any Competitor of the Company. For the purposes of this Agreement, a “Competitor” is any person or entity that engages in, or is planning to engage in, in whole or in part, in the Executive agrees thatbusiness of: coal mining, for preparation and sale; the period ending one year after marketing, brokering and trading of coal; the termination optimization of coal reserves; and contract mining in each case by the Executive's employment Company or its subsidiaries;
ii. consult with, act as an agent for, or otherwise assist any Competitor to compete or prepare to compete with the Company by in any of the Company’s existing or prospective businesses, including those of the Company’s subsidiaries; iii. interfere with the relationship between the Company for Cause and any current or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, former employee, agent, or consultant of the Company, including, without limitation, soliciting, inducing, enticing, hiring, employing, or attempting to solicit, induce, entice, hire, or employ any current or former employee, agent, or consultant of the Company;
iv. interfere or attempt to interfere with any transaction in which the Company or its subsidiaries were involved or which was pending during the term of Executive’s employment or as of the Separation Date; and/or
v. solicit in any manner any of the Company’s clients, partners, vendors, customers or prospective customers, including, without limitation, soliciting, inducing, or attempting to solicit or to induce any client, partner, vendor, customer or other business relation of the Company to cease doing business with the Company, reduce the amount of business it does with the Company, or in any other capacity as principal way interfere with the relationship between any such client, partner, vendor, customer or agent business relation and the Company, its affiliates, subsidiaries, or through parents.
b. Nothing in this Agreement shall be construed to preclude Executive from being a passive investor in any Personpublicly or privately held company, subsidiary or employee acting as nominee or agent):
provided that (i) conduct or engage in or be interested in or associated with any Person which conducts or engages no such investment in the Triarco Business within equity securities of an entity with publicly traded equity securities exceeds one percent (1%) of the United States;
equity of such entity, and no such investment in any other entity exceeds five percent (5%) of the equity of such entity, or (ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in Executive has the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ prior written approval of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with Board of Directors of the Company.
(b) The c. Executive shall neither, either on may not avoid the Executive's own account or in conjunction with or on behalf purpose and intent of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract this Section by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in conduct within the Triarco Business that is not so listed geographically limited area from a remote location through means such as telecommunications, written correspondence, computer generated or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director assisted communications or other advisor to any other Personsimilar methods.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) In consideration For a period of this Agreement, the Executive agrees that, for the period ending one year five (5) years after the termination of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason Closing (the "Non-Competition “Restricted Period"”), the Executive Ameron will not, directly or indirectly (whether as a sole proprietorand will cause its Subsidiaries not to, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any actionengage, directly or indirectly, to financein any business that competes with the Business or that develops, guarantee manufactures or provide any other material assistance to markets high performance coatings, marine coatings, floorings, surfacing systems and product finishes (the “Competing Service”); provided the foregoing shall not prohibit any Person (or its Affiliates) that acquires Ameron from providing the Competing Service, whether by acquisition or otherwise, provided that no such Person (or any Affiliate of such Person) may provide the Competing Service through Sellers or their respective Subsidiaries, including, without limitation, through the use of any intellectual property of Sellers or their respective Subsidiaries or persons employed by any of them at, or anytime during the six (6) month period preceding, the time of such acquisition of any assets or facilities thereof. Notwithstanding any of the foregoing, this Section 6.11 shall not prohibit Sellers or their respective Subsidiaries from (i) collectively owning less than ten percent (10%) of the equity securities or other ownership interests in a Person that provides the Competing Service, (ii) making any acquisition of another Person which is engaged in the Triarco Business;
Competing Service, if such activity represents less than twenty percent (20%) of such Person’s revenues; provided that a business that develops, manufactures or markets pipe coatings shall not be considered a business that is engaged in a Competing Service for purposes of the foregoing restriction; or (iii) solicitselling coated products manufactured or caused to be manufactured by Ameron, contact manufacturing, having manufactured or accept business otherwise purchasing coatings for use and production of any client such coated products manufactured or counterparty whom the Company served or conducted business with or whose name became known caused to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Companybe manufactured by Ameron.
(b) The Executive shall neitherFor a period of two (2) years after the Closing, either on the Executive's own account neither Sellers nor any of their respective Affiliates shall, directly or in conjunction with or on behalf of any other Personindirectly, solicit or entice away from the Company induce any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce Business Employee to leave the employment of Buyer; provided that this covenant shall not be deemed breached if any such Person whether employee is responding to general employment solicitation by Sellers or any of their respective Affiliates which is not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring businessspecifically directed at the Business Employees.
(c) The restrictive provisions term of the covenants contained in Sections 6.11(a) and (b) hereof shall not prohibit be tolled for the Executive from (i) having an equity interest in period commencing on the securities date any successful action is filed for injunctive relief or damages arising out of any entity engaged in the Triarco Business a breach by Sellers or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests their respective Affiliates of Sections 6.11(a) and (b) hereof and ending upon final adjudication (including appeals) of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Personaction.
(d) The Executive agrees that If, in any judicial proceeding, the court shall refuse to enforce the covenants contained in this Section 10 Sections 6.11(a) and (b) hereof because the time limit is too long, it is expressly understood and agreed between the parties hereto that for purposes of such proceeding such time limitation shall be deemed reduced to the extent necessary to permit enforcement of such covenants. If, in any judicial proceeding, the court shall refuse to enforce covenants contained in Sections 6.11(a) and (b) hereof because they are reasonable covenants under more extensive (whether as to geographic area, scope of business or otherwise) than necessary to protect the circumstancesbusiness and goodwill of Buyer, it is expressly understood and agreed between the parties hereto that for purposes of such proceeding the geographic area, scope of business or other aspect shall be deemed reduced to the extent necessary to permit enforcement of such covenants.
(e) Sellers acknowledge that a breach of Sections 6.11(a) and (b) hereof would cause irreparable damage to Buyer, and further agrees that if in the opinion event of Sellers’ or any of their respective Affiliates actual or threatened breach of the provisions of Sections 6.11(a) and (b) hereof, Buyer shall be entitled to a court temporary restraining order and an injunction restraining Sellers and their respective Affiliates from breaching such covenants without the necessity of competent jurisdictionposting bond or proving irreparable harm, such restraint is not reasonable in being conclusively admitted by Sellers. Nothing shall be construed as prohibiting Buyer from pursuing any respectother available remedies for such breach or threatened breach, such court shall have including the right, power and authority to excise or modify such provision or provisions recovery of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amendeddamages from Sellers.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ameron International Corp)
