Non-Competition; Non-Solicitation. a. In granting the Restricted Stock Unit Award to the Participant, the Company provides the Participant a further incentive to build the Company’s goodwill and links the Participant’s interests to the Company’s long-term business interests. As an inducement for the Company to grant the Restricted Stock Unit Award and enter into this Agreement, and in order to protect the Confidential Information, and the Company’s and its subsidiaries goodwill, the Participant voluntarily agrees to the covenants set forth in this Section 4(a). The Participant agrees and acknowledges that the limitations and restrictions set forth herein, including the geographical and temporal restrictions on certain activities, are reasonable in all respects and not oppressive and are material and substantial part of the Company’s willingness to enter into this Agreement, and are intended and necessary to protect the Company’s and its subsidiaries’ Confidential Information, goodwill, and substantial and legitimate business interests. b. The Participant agrees that during the Prohibited Period, the Participant shall not, without prior written approval of the Company, directly or indirectly, for the Participant, or on behalf of or in conjunction with any other person or entity of whatever nature: i. engage in or carry on within the Market Area in competition with the Company or any of its subsidiaries in any aspect of the Business, which prohibition shall prevent the Participant from directly or indirectly: (A) owning, managing, operating, becoming an officer or director of any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries, or (B) in the Market Area, joining, becoming employee or consultant of, or otherwise being affiliated with any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries (in each case, with respect to this clause (B), in any capacity in which the Participant’s duties are the same or similar to those performed for the Company or any of its subsidiaries) – for purposes of this provision, “primarily engage” means that at least twenty percent (20%) of the gross revenue of a person or entity’s business is from business directly competitive with the Business; ii. appropriate any Business Opportunity of, or relating to, the Company or any of its subsidiaries located in the Market Area; iii. within the Market Area, solicit, canvass, approach, encourage, entice or induce any customer or supplier of the Company or any of its subsidiaries with whom or which the Participant had contact in the last 24 months of his or her employment with the Company or its subsidiaries or about whom or which the Participant obtained Confidential Information to cease or lessen such customer’s or supplier’s business with the Company or any of its subsidiaries in the Business; or iv. solicit, canvass, approach, encourage, entice or induce any employee or contractor of the Company or any of its subsidiaries to terminate his, her or its employment or engagement therewith, excluding general advertisements and solicitations not targeted at the employees or contractors of the Company or its subsidiaries. v. Notwithstanding the above-referenced limitations in Sections 4(b)(i), 4(b)(ii) and 4(b)(iii), such limitations shall not apply following the termination of the Participant’s employment with the Company and (as applicable) any of its subsidiaries in those portions of the Market Area located within the State of Oklahoma. Instead, the Participant agrees that, during the portion of the Prohibited Period that occurs after the Participant is no longer employed by the Company or any of its subsidiaries, the restrictions on the Participant’s activities within those portions of the Market Area located within the State of Oklahoma (in addition to those restrictions set forth in Sections 1 and 4(b)(iv) herein) shall be as follows: the Participant will not directly or indirectly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company or of any of its subsidiaries. c. For purposes of this Section 4, the following terms shall have the following meanings:
Appears in 3 contracts
Samples: Time Vested Restricted Stock Unit Award Agreement (Key Energy Services Inc), Time Vested Restricted Stock Unit Award Agreement (Key Energy Services Inc), Time Vested Restricted Stock Unit Award Agreement (Key Energy Services Inc)
Non-Competition; Non-Solicitation. a. (a) In granting the Restricted Stock Unit Award to the Participantconsideration of, and as a material inducement to, the Company provides the Participant a further incentive to build the Company’s goodwill and links the Participant’s interests to the Company’s long-term business interests. As an inducement for the Company to grant the Restricted Stock Unit Award and enter into this Agreementproviding Executive with continued employment in which Executive receives, and in order to protect the has access to, Confidential Information, and the Company’s and its subsidiaries goodwill, the Participant Executive voluntarily agrees to the covenants set forth in this Section 4(a)Agreement. The Participant Executive agrees and acknowledges that the limitations and restrictions set forth herein, including the geographical and temporal restrictions on certain competitive activities, are reasonable in all respects and not oppressive and are material and substantial part of the Company’s willingness to enter into this Agreementoppressive, will not cause Executive undue hardship, and are intended and necessary to prevent unfair competition and to protect Confidential Information and the CompanyCompany Group’s and its subsidiaries’ Confidential Information, goodwill, value and substantial and legitimate business interests.
b. The Participant (b) Executive agrees that that, during the Prohibited PeriodPeriod (as defined below), the Participant Executive shall not, without the prior written approval of the Board of Directors of the Company, directly or indirectly, for the Participant, Executive or on behalf of or in conjunction with any other person or entity of whatever any nature:
i. (i) engage in or carry on on, within the Market Area (as defined below), in competition with any member of the Company or any of its subsidiaries Group in any aspect certain aspects of the BusinessBusiness (as defined below), which prohibition shall prevent the Participant Executive from directly or indirectly: (A) owning, managingbecoming a director of, operatingor loaning money to, becoming an officer or director of selling or leasing equipment or real estate to, any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company or any of its subsidiaries, Group; or (B) in the Market Area, joining, becoming an employee or consultant of, or otherwise being affiliated with of any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company or any of its subsidiaries (in each case, with respect to this clause (B), Group in any capacity in which the ParticipantExecutive’s duties for or on behalf of such person or entity are the same or similar to those as the duties that Executive performed for any member of the Company or any of its subsidiaries) – for purposes of this provisionGroup prior to the Closing; it being understood that Executive will not be prohibited from operating assets that are owned by an unaffiliated third party, “primarily engage” means that at least twenty percent (20%) of even if such assets are in the gross revenue of a person or entity’s business is from business directly competitive with the BusinessMarket Area;
(ii. ) appropriate any Business Opportunity of, or relating to, any member of the Company or any of its subsidiaries Group located in the Market Area;; or
(iii. within the Market Area, ) solicit, canvass, approach, encourage, entice or induce any customer Protected Customer or supplier of the Company or any of its subsidiaries with whom or which the Participant had contact in the last 24 months of his or her employment with the Company or its subsidiaries or about whom or which the Participant obtained Confidential Information Supplier (as defined below): (A) to cease or lessen such customerits business with any member of the Company Group; or (B) to refuse or decline to enter into business with, supply products or services to or purchase products or services from, any member of the Company Group.
(c) Executive acknowledges and agrees that the harm caused by Executive’s breach, or supplierpotential breach, of his commitments in this Agreement are incapable or difficult of estimation. 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 this Agreement, and because of the immediate and irreparable damage that would be caused to the Company Group for which it would have no other adequate remedy, each 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. In addition, Executive expressly acknowledges and agrees that, in the event he violates the terms of this Agreement, he will immediately forfeit any rights he has to payments or benefits pursuant to that certain WildHorse Resource Development Corporation Executive Change in Control and Severance Benefit Plan (the “Severance Plan”), and he shall be required to immediately return any and all payments or monetary benefits received by him pursuant to the Severance Plan. Executive acknowledges and agrees that the remedy referenced in the previous sentence is a reasonable forecast of just compensation for the Company Group in the event that Executive breaches the terms of this Agreement.
(d) Executive acknowledges and agrees that the covenants contained in this Section 2 are the result of arm’s-length bargaining and are fair and reasonable in light of (i) the nature and wide geographic scope of the Company Group’s business, which is conducted throughout the Market Area; (ii) Executive’s level of control over, and contact with, the Company Group’s business and Executive’s association with the Company or Group’s goodwill; (iii) Executive’s knowledge of, and anticipated knowledge of, Confidential Information.
(e) Notwithstanding the foregoing, Executive may own an aggregate of not more than 5.0% of the outstanding stock of any class of its subsidiaries any corporation principally engaged in the Business; or
iv. solicit, canvass, approach, encourage, entice or induce Business (other than any employee or contractor member of the Company Group), if such stock is listed on a national securities exchange or regularly traded in the over-the-counter market by a member of a national securities exchange, without violating the provisions of Section 2(b)(i), provided that Executive does not have the power, directly or indirectly, to control or direct the management or affairs of any such corporation and is not involved in the management of its subsidiaries to terminate his, her or its employment or engagement therewith, excluding general advertisements and solicitations not targeted at the employees or contractors of the Company or its subsidiariessuch corporation.
v. Notwithstanding the above-referenced limitations in Sections 4(b)(i), 4(b)(ii(f) and 4(b)(iii), such limitations shall not apply following the termination of the Participant’s employment with the Company and (as applicable) any of its subsidiaries in those portions of the Market Area located within the State of Oklahoma. Instead, the Participant agrees that, during the portion of the Prohibited Period that occurs after the Participant is no longer employed by the Company or any of its subsidiaries, the restrictions on the Participant’s activities within those portions of the Market Area located within the State of Oklahoma (in addition to those restrictions set forth in Sections 1 and 4(b)(iv) herein) shall be as follows: the Participant will not directly or indirectly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company or of any of its subsidiaries.
c. For purposes of this Section 4Agreement, the following terms shall have the following meanings:
Appears in 2 contracts
Samples: Confidentiality, Non Competition and Non Solicitation Agreement (WildHorse Resource Development Corp), Confidentiality, Non Competition and Non Solicitation Agreement (WildHorse Resource Development Corp)
Non-Competition; Non-Solicitation. a. In granting (a) The Company shall provide Employee access to Confidential Information for use only during the Restricted Stock Unit Award to the ParticipantEmployment Period, and Employee acknowledges and agrees that Employee will be an executive of the Company provides and the Participant a further Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill of the Company Group, and in consideration of the Company providing Employee with access to Confidential Information and as an express incentive to build the Company’s goodwill and links the Participant’s interests to the Company’s long-term business interests. As an inducement for the Company to grant the Restricted Stock Unit Award and enter into this AgreementAgreement and employ Employee, and in order to protect the Confidential Information, and the Company’s and its subsidiaries goodwill, the Participant Employee has voluntarily agrees agreed to the covenants set forth in this Section 4(a)9. The Participant Employee agrees and acknowledges that the limitations and restrictions set forth herein, including the geographical and temporal restrictions on certain competitive activities, are reasonable in all respects and respects, will not oppressive cause Employee undue hardship, and are material and substantial part parts of the Company’s willingness to enter into this Agreement, and are Agreement intended and necessary to prevent unfair competition and to protect the CompanyCompany Group’s trade secrets and its subsidiaries’ other Confidential Information, goodwill, and substantial goodwill and legitimate business interests.
b. The Participant agrees that during (b) During the Prohibited Period, the Participant Employee shall not, without the prior written approval of the CompanyBoard, directly or indirectly, for the Participant, Employee or on behalf of or in conjunction with any other person or entity of whatever any nature:
i. (i) engage in or carry on participate within the Market Area in competition with any member of the Company or any of its subsidiaries Group in any aspect of the Business, which prohibition shall prevent the Participant Employee from directly or indirectly: (A) owning, managing, operating, being an officer, director or executive of, or lending to a business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an officer officer, director, employee or director of consultant of, or loaning money to, or selling or leasing equipment or real estate to or otherwise being affiliated with, any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company or any of its subsidiariesGroup, or (B) in the Market Area, joining, becoming employee or consultant of, or otherwise being affiliated with any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries (in each case, case (with respect to this clause (B), ) in any capacity in which the ParticipantEmployee’s duties are the same or similar to those performed for any member of the Company or any of its subsidiaries) – for purposes of this provision, “primarily engage” means that at least twenty percent (20%) of the gross revenue of a person or entity’s business is from business directly competitive with the BusinessGroup);
(ii. ) appropriate any Business Opportunity of, or relating to, the Company or any of its subsidiaries Group located in the Market Area;
(iii. within the Market Area, ) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company or any of its subsidiaries with whom or which the Participant had contact in the last 24 months of his or her employment with the Company or its subsidiaries or about whom or which the Participant obtained Confidential Information Group to cease or lessen such customer’s or supplier’s business with the Company or any of its subsidiaries in the BusinessGroup; or
(iv. ) solicit, canvass, approach, encourage, entice or induce any employee or contractor of the Company or any of its subsidiaries Group to terminate his, her or its employment or engagement therewith, excluding general advertisements and solicitations not targeted at the employees or contractors with any member of the Company or its subsidiariesGroup. For the avoidance of doubt, engaging in the activities set forth on Appendix B would not constitute a violation of the covenants set forth in this Section 9.
v. Notwithstanding the above-referenced limitations in Sections 4(b)(i), 4(b)(ii(c) and 4(b)(iii), such limitations shall not apply following the termination Because of the Participant’s employment with 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 8 and in this Section 9, 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 (as applicable) any of its subsidiaries in those portions each other member of the Market Area located within Company Group shall be entitled to enforce the State foregoing covenants, in the event of Oklahomaa 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. Instead, The aforementioned equitable relief shall not be the Participant agrees that, during the portion Company’s or any other member of the Prohibited Period that occurs after the Participant is no longer employed by the Company or any of its subsidiaries, the restrictions on the ParticipantGroup’s activities within those portions of the Market Area located within the State of Oklahoma (exclusive remedy for a breach but instead shall be in addition to those all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(d) The covenants in this Section 9, 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 in Sections 1 and 4(b)(iv) herein) shall be as follows: are unreasonable, then it is the Participant will not directly or indirectly solicit the sale of goods, services, or a combination of goods and services from the established customers intention of the Company parties that such restrictions be enforced to the fullest extent which such arbitrator or of any of its subsidiariescourt deems reasonable, and this Agreement shall thereby be reformed.
c. For purposes of this Section 4, the (e) The following terms shall have the following meanings:
Appears in 2 contracts
Samples: Employment Agreement (Theralink Technologies, Inc.), Employment Agreement (Avant Diagnostics, Inc)
Non-Competition; Non-Solicitation. a. (a) In granting the Restricted Stock Unit Award to the Participant, the Company provides the Participant a further incentive to build the Company’s goodwill and links the Participant’s interests to the Company’s long-term business interests. As an inducement for the Company to grant the Restricted Stock Unit Award and enter into this Agreement, and in order to protect the Confidential Information, and the Company’s and its subsidiaries goodwill, the Participant voluntarily agrees to the covenants set forth in this Section 4(a). The Participant agrees and acknowledges that the limitations and restrictions set forth herein, including the geographical and temporal restrictions on certain activities, are reasonable in all respects and not oppressive and are material and substantial part of the Company’s willingness to enter into this Agreement, and are intended and necessary to protect the Company’s and its subsidiaries’ Confidential Information, goodwill, and substantial and legitimate business interests.
b. (b) The Participant agrees that during the Prohibited Period, the Participant shall not, without prior written approval of the Company, directly or indirectly, for the Participant, or on behalf of or in conjunction with any other person or entity of whatever nature:
i. (i) engage in or carry on within the Market Area in competition with the Company or any of its subsidiaries in any aspect of the Business, which prohibition shall prevent the Participant from directly or indirectly: (A) indirectly owning, managing, operating, becoming an officer or director of any person or entity primarily engaged inofficer, or planning to primarily engage indirector, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries, or (B) in the Market Area, joining, becoming employee or consultant of, or otherwise being affiliated with any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area (x) in competition, any capacity if the Participant is a Vice President or anticipated competition, with above at the Company or any of its subsidiaries and (in each case, with respect to this clause (B), y) in any capacity in which the Participant’s duties are the same or similar to those performed for the Company or any of its subsidiaries) – subsidiaries if the Participant is below the level of a Vice President at the Company; for purposes of this provision, “primarily engage” means that at least twenty percent (20%) of the gross revenue of a person or entity’s business is from business directly competitive with the Business;Business;
(ii. ) appropriate any Business Opportunity of, or relating to, the Company or any of its subsidiaries located in the Market Area;Area;
(iii. ) within the Market Area, solicit, canvass, approach, encourage, entice or induce any (i) current customer or supplier of the Company or any of its subsidiaries with whom or which the Participant had contact in the last 24 months of his or her employment with the Company or its subsidiaries, (ii) Prospective Customer or Supplier with whom or which the Participant had contact in the last 6 months of his or her employment with the Company or its subsidiaries or (iii) any such customer, supplier or Prospective Customer or Supplier about whom or which the Participant obtained Confidential Information to cease or lessen such customer’s or supplier’s or Prospective Customer’s or Supplier’s business with the Company or any of its subsidiaries in the Business; orBusiness;
(iv. ) solicit, canvass, approach, encourage, entice or induce any employee or contractor of the Company or any of its subsidiaries to terminate his, her or its employment or engagement therewith, excluding general advertisements and solicitations not targeted at the employees or contractors of the Company or its subsidiaries.; or
v. (v) employ or cause any other person or entity to employ any person who was an employee or contractor of the Company or any of its subsidiaries in the past six (6) months. Notwithstanding the above-above referenced limitations in Sections 4(b)(i), 4(b)(ii) and 4(b)(iii), such limitations shall not apply following the termination of the Participant’s employment with the Company and (as applicable) any of its subsidiaries in those portions of the Market Area located within the State of Oklahoma. Instead, the Participant agrees that, during the portion of the Prohibited Period that occurs after the Participant is no longer employed by the Company or any of its subsidiaries, the restrictions on the Participant’s activities within those portions of the Market Area located within the State of Oklahoma (in addition to those restrictions set forth in Sections 1 and 4(b)(iv) herein) shall be as follows: the Participant will not directly or indirectly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company or of any of its subsidiaries.
c. (c) For purposes of this Section 4, the following terms shall have the following meanings:
Appears in 2 contracts
Samples: Time Vested Restricted Stock Unit Award Agreement (Key Energy Services Inc), Restricted Stock Unit Award Agreement (Key Energy Services Inc)
Non-Competition; Non-Solicitation. a. In granting (a) The Bank shall provide Employee access to Confidential Information for use only during the Restricted Stock Unit Award to the ParticipantEmployment Period, and Employee acknowledges and agrees that the Company provides Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the Participant a further goodwill of the Company Group, and as an express incentive to build the Company’s goodwill and links the Participant’s interests to the Company’s long-term business interests. As an inducement for the Company Bank to grant the Restricted Stock Unit Award and enter into this Agreement, and in order to protect the Confidential Information, Agreement and the Company’s and its subsidiaries goodwillBank to employ Employee hereunder, the Participant Employee has voluntarily agrees agreed to the covenants set forth in this Section 4(a)11. The Participant Employee agrees and acknowledges that the limitations and restrictions set forth herein, including the geographical and temporal restrictions on certain competitive activities, are reasonable in all respects and respects, do not oppressive interfere with public interests, will not cause Employee undue hardship, and are material and substantial part parts of the Company’s willingness to enter into this Agreement, and are Agreement intended and necessary to prevent unfair competition and to protect the CompanyCompany Group’s and its subsidiaries’ Confidential Information, goodwill, and substantial goodwill and legitimate business interests.
b. The Participant agrees that during (b) During the Prohibited Period, the Participant Employee shall not, without the prior written approval of the CompanyBoards, directly or indirectly, for the Participant, Employee or on behalf of or in conjunction with any other person or entity of whatever any nature:
i. (i) engage in or carry on participate within the Market Area in competition with any member of the Company or any of its subsidiaries Group in any aspect of the Business, which prohibition shall prevent the Participant Employee from directly or indirectly: (A) owning, managing, operating, becoming or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company or Group in any of its subsidiaries, or capacity (B) in the Market Area, joining, becoming employee or consultant of, or otherwise being affiliated with any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries (in each case, with respect to this clause (B), in any capacity ) in which the ParticipantEmployee’s duties are the same or similar responsibilities involve any direct or indirect responsibilities with respect to those performed for the Company or any of its subsidiaries) – for purposes of this provision, “primarily engage” means that at least twenty percent (20%) of the gross revenue of a person or entity’s business is from business directly competitive with the Business;;
(ii. ) appropriate any Business Opportunity of, or relating to, any member of the Company or any of its subsidiaries Group located in the Market AreaArea that a member of the Company Group is then considering or pursuing or of which Employee became aware during the Employment Period;
(iii. within the Market Area, ) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company or any of its subsidiaries Group with whom or which the Participant Employee had material contact in the last 24 months on behalf of his or her employment with any member of the Company or its subsidiaries Group or about whom or which the Participant Employee obtained Confidential Information to cease or lessen such customer’s or supplier’s business with any member of the Company or any of its subsidiaries in the BusinessGroup; or
(iv. ) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company or any of its subsidiaries Group to terminate his, her or its employment or engagement therewith, excluding general advertisements and solicitations not targeted at the employees or contractors with any member of the Company or its subsidiariesGroup.
v. Notwithstanding (c) Because of the above-referenced limitations difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Sections 4(b)(i)Section 10 and in this Section 11, 4(b)(ii) and 4(b)(iii)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, such limitations the Bank and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not apply following be the termination Bank’s or any other member of the ParticipantCompany Group’s employment with the Company and (as applicable) any of its subsidiaries in those portions of the Market Area located within the State of Oklahoma. Instead, the Participant agrees that, during the portion of the Prohibited Period that occurs after the Participant is no longer employed by the Company or any of its subsidiaries, the restrictions on the Participant’s activities within those portions of the Market Area located within the State of Oklahoma (exclusive remedy for a breach but instead shall be in addition to those all other rights and remedies available to the Bank and each other member of the Company Group at law and equity.
(d) The covenants in this Section 11, 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 in Sections 1 and 4(b)(iv) herein) shall be as follows: are unreasonable, then it is the Participant will not directly or indirectly solicit the sale of goods, services, or a combination of goods and services from the established customers intention of the Company parties that such restrictions be enforced to the fullest extent which such arbitrator or of any of its subsidiariescourt deems reasonable, and this Agreement shall thereby be reformed.
c. For purposes of this Section 4, the (e) The following terms shall have the following meanings:
Appears in 2 contracts
Samples: Employment Agreement (Republic First Bancorp Inc), Employment Agreement (Republic First Bancorp Inc)
Non-Competition; Non-Solicitation. a. In granting (a) The Company shall provide Employee access to Confidential Information for use only during the Restricted Stock Unit Award to the ParticipantEmployment Period, and Employee acknowledges and agrees that the Company provides Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the Participant a further goodwill of the Company Group, and in consideration of the Company providing Employee with access to Confidential Information and as an express incentive to build the Company’s goodwill and links the Participant’s interests to the Company’s long-term business interests. As an inducement for the Company to grant the Restricted Stock Unit Award and enter into this AgreementAgreement and employ Employee hereunder, and in order to protect the Confidential Information, and the Company’s and its subsidiaries goodwill, the Participant Employee has voluntarily agrees agreed to the covenants set forth in this Section 4(a)10. The Participant Employee agrees and acknowledges that the limitations and restrictions set forth herein, including the geographical and temporal restrictions on certain competitive activities, are reasonable in all respects and respects, do not oppressive interfere with public interests, will not cause Employee undue hardship, and are material and substantial part parts of the Company’s willingness to enter into this Agreement, and are Agreement intended and necessary to prevent unfair competition and to protect the CompanyCompany Group’s and its subsidiaries’ Confidential Information, goodwill, and substantial goodwill and legitimate business interests.
b. The Participant agrees that during (b) During the Prohibited Period, the Participant Employee shall not, without the prior written approval of the CompanyBoard, directly or indirectly, for the Participant, Employee or on behalf of or in conjunction with any other person or entity of whatever any nature:
i. (i) engage in or carry on within the Market Area in competition with the Company or any of its subsidiaries in any aspect of the Businessparticipate, which prohibition shall prevent the Participant from directly or indirectly, in the following conduct: (A) owning, managing, operating, becoming or being an officer or director of, any business that competes with any member of the Company Group in the Market Area related to the Business (except for the ownership of up to 3.0% of the shares of common stock or securities or any entity whose common shares or securities are listed on a national securities exchange), or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company or Group in any of its subsidiaries, or capacity (B) in the Market Area, joining, becoming employee or consultant of, or otherwise being affiliated with any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries (in each case, with respect to this clause (B), in any capacity ) in which the ParticipantEmployee’s duties or responsibilities are the same as or similar to those performed for the duties or responsibilities that Employee had on behalf of any member of the Company or any of its subsidiaries) – for purposes of this provision, “primarily engage” means that at least twenty percent (20%) of the gross revenue of a person or entity’s business is from business directly competitive with the BusinessGroup;
(ii. appropriate any Business Opportunity of, or relating to, the Company or any of its subsidiaries located in the Market Area;
iii. within the Market Area, ) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company or any of its subsidiaries Group with whom or which the Participant Employee had personal contact in the last 24 months course of his or her employment with performing Employee’s duties for any member of the Company or its subsidiaries or about whom or which the Participant obtained Confidential Information Group to cease or lessen such customer’s or supplier’s business with any member of the Company or any of its subsidiaries in the BusinessGroup; or
iv. (iii) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company or any of its subsidiaries Group to terminate or reduce his, her or its employment or engagement therewith, excluding general advertisements and solicitations not targeted at the employees or contractors with any member of the Company Group. This provision shall not prohibit Employee from employing or its subsidiariesmaking an offer of employment to an employee or contractor of any member of the Company Group if such employment and/or offer resulted from a general solicitation or advertisement for applications in a newspaper, trade publication, on the Internet or other public forum.
v. Notwithstanding (c) Because of the above-referenced limitations difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Sections 4(b)(i)Section 9 and in this Section 10, 4(b)(ii) and 4(b)(iii)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, such limitations the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not apply following be the termination Company’s or any other member of the ParticipantCompany Group’s employment 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.
(i) If Employee violates his/her obligations during the Prohibited Period and the Company (or relevant member of the Company Group) brings legal action for injunctive or other relief under Sections 9 and/or 10, the applicable Restricted Period shall be tolled by such court of competent jurisdiction so that the Company Group shall not be deprived of the benefit of the full Prohibited Period.
(ii) During the Prohibited Period, Executive expressly agrees to notify any prospective employer or affiliate in the restricted Business and Market Area of his/her obligations during the Prohibited Period and authorizes the Company to make contact with, any person or affiliate reasonably believed by the Company Group to be engaged or about to be engaged in an act that would constitute a violation of Employee’s obligations under this Agreement. Employee hereby waives, and releases the Company Group from, any claims whatsoever arising in connection with the Company Group’s contact or discussions with such person or affiliate.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (as applicableor portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any court of its subsidiaries in those portions of competent jurisdiction shall determine that the Market Area located within the State of Oklahoma. Insteadscope, the Participant agrees that, during the portion of the Prohibited Period that occurs after the Participant is no longer employed by the Company time or any of its subsidiaries, the restrictions on the Participant’s activities within those portions of the Market Area located within the State of Oklahoma (in addition to those territorial restrictions set forth in Sections 1 and 4(b)(iv) herein) shall be as follows: are unreasonable, then it is the Participant will not directly or indirectly solicit the sale of goods, services, or a combination of goods and services from the established customers intention of the Company or of any of its subsidiariesparties that such restrictions be enforced to the fullest extent which such court deems reasonable, and this Agreement shall thereby be reformed.
c. For purposes of this Section 4, the (e) The following terms shall have the following meanings:
Appears in 2 contracts
Samples: Employment Agreement (Hyliion Holdings Corp.), Employment Agreement (Hyliion Holdings Corp.)
Non-Competition; Non-Solicitation. a. In granting the Restricted Stock Unit Award to the Participant, the Company provides the Participant a further incentive to build the Company’s goodwill and links the Participant’s interests to the Company’s long-term business interests. As an inducement for the Company to grant the Restricted Stock Unit Award and enter into this Agreement, and in order to protect the Confidential Information, and the Company’s and its subsidiaries goodwill, the Participant voluntarily agrees to the covenants set forth in this Section 4(a). The Participant agrees and acknowledges that the limitations and restrictions set forth herein, including the geographical and temporal restrictions on certain activities, are reasonable in all respects and not oppressive and are material and substantial part of the Company’s willingness to enter into this Agreement, and are intended and necessary to protect the Company’s and its subsidiaries’ Confidential Information, goodwill, and substantial and legitimate business interests.
b. The Participant agrees that during the Prohibited Period, the Participant shall not, without prior written approval of the Company, directly or indirectly, for the Participant, or on behalf of or in conjunction with any other person or entity of whatever nature:
i. engage in or carry on within the Market Area in competition with the Company or any of its subsidiaries in any aspect of the Business, which prohibition shall prevent the Participant from directly or indirectly: (A) owning, managing, operating, becoming an officer or director of any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries, or (B) in the Market Area, joining, becoming employee or consultant of, or otherwise being affiliated with any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries (in each case, with respect to this clause (B), in any capacity in which the Participant’s duties are the same or similar to those performed for the Company or any of its subsidiaries) – for purposes of this provision, “primarily engage” means that at least twenty percent (20%) of the gross revenue of a person or entity’s business is from business directly competitive with the Business);
ii. appropriate any Business Opportunity of, or relating to, the Company or any of its subsidiaries located in the Market Area;
iii. within the Market Area, solicit, canvass, approach, encourage, entice or induce any customer or supplier of the Company or any of its subsidiaries with whom or which the Participant had contact in the last 24 months of his or her employment with the Company or its subsidiaries or about whom or which the Participant obtained Confidential Information to cease or lessen such customer’s or supplier’s business with the Company or any of its subsidiaries in the Business; or
iv. solicit, canvass, approach, encourage, entice or induce any employee or contractor of the Company or any of its subsidiaries to terminate his, her or its employment or engagement therewith, excluding general advertisements and solicitations not targeted at the employees or contractors of the Company or its subsidiaries.
v. Notwithstanding the above-referenced limitations in Sections 4(b)(i), 4(b)(ii) and 4(b)(iii), such limitations shall not apply following the termination of the Participant’s employment with the Company and (as applicable) any of its subsidiaries in those portions of the Market Area located within the State of Oklahoma. Instead, the Participant agrees that, during the portion of the Prohibited Period that occurs after the Participant is no longer employed by the Company or any of its subsidiaries, the restrictions on the Participant’s activities within those portions of the Market Area located within the State of Oklahoma (in addition to those restrictions set forth in Sections 1 and 4(b)(iv) herein) shall be as follows: the Participant will not directly or indirectly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company or of any of its subsidiaries.
c. For purposes of this Section 4, the following terms shall have the following meanings:
Appears in 2 contracts
Samples: Time Vested Restricted Stock Unit Award Agreement (Key Energy Services Inc), Performance Based Restricted Stock Unit Award Agreement (Key Energy Services Inc)
Non-Competition; Non-Solicitation. a. In (a) The Company shall provide Employee access to Confidential Information for use only during the Employment Period, and Employee acknowledges and agrees that the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill of the Company Group, and in consideration of (i) the Company providing Employee with access to Confidential Information, (i) the Company granting the Restricted Stock Unit Award certain equity awards to Employee pursuant to the ParticipantPlan concurrent with effectiveness of this Agreement, the Company provides the Participant a further and (i) as an express incentive to build the Company’s goodwill and links the Participant’s interests to the Company’s long-term business interests. As an inducement for the Company to grant the Restricted Stock Unit Award and enter into this AgreementAgreement and employ Employee, and in order to protect the Confidential Information, and the Company’s and its subsidiaries goodwill, the Participant Employee has voluntarily agrees agreed to the covenants set forth in this Section 4(a)9. The Participant Employee agrees and acknowledges that the limitations and restrictions set forth herein, including the geographical and temporal restrictions on certain competitive activities, are reasonable in all respects and respects, do not oppressive interfere with public interests, will not cause Employee undue hardship, and are material and substantial part parts of the Company’s willingness to enter into this Agreement, and are Agreement intended and necessary to prevent unfair competition and to protect the CompanyCompany Group’s and its subsidiaries’ Confidential Information, goodwill, and substantial and legitimate business interests.
b. The Participant agrees that during (b) During the Prohibited Period, the Participant Employee shall not, without the prior written approval of the CompanyBoard, directly or indirectly, for the Participant, Employee or on behalf of or in conjunction with any other person or entity of whatever any nature:
i. (i) engage in or carry on participate within the Market Area in competition with any member of the Company or any of its subsidiaries Group in any aspect of the Business, which prohibition shall prevent the Participant Employee from directly or indirectly: (A) owning, managing, operating, becoming or being an officer or director of, any business that competes with any member of the Company Group in the Market Area or (A) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company or Group in any of its subsidiaries, or capacity (B) in the Market Area, joining, becoming employee or consultant of, or otherwise being affiliated with any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries (in each case, with respect to this clause (B), in any capacity ) in which the ParticipantEmployee’s duties or responsibilities are the same as or similar to those performed for the duties or responsibilities that Employee had on behalf of any member of the Company or any of its subsidiariesGroup; or
(ii) – for purposes of this provision, “primarily engage” means that at least twenty percent (20%) of the gross revenue of a person or entity’s business is from business directly competitive with the Business;
ii. appropriate any Business Opportunity of, or relating to, any member of the Company or any of its subsidiaries Group located in the Market Area;
iii. within (c) During the Market AreaProhibited Period Employee shall not, without prior written approval of the Board, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) solicit, canvass, approach, encourage, entice entice, or induce any customer or supplier of any member of the Company or any of its subsidiaries with whom or which the Participant had contact in the last 24 months of his or her employment with the Company or its subsidiaries or about whom or which the Participant obtained Confidential Information Group to cease or lessen such customer’s or supplier’s business with any member of the Company or any of its subsidiaries in the BusinessGroup; or
iv. (ii) solicit, canvass, approach, encourage, entice entice, or induce any employee or contractor of any member of the Company or any of its subsidiaries Group to terminate his, her her, or its employment or engagement therewith, excluding general advertisements and solicitations not targeted at the employees or contractors with any member of the Company or its subsidiariesGroup.
v. Notwithstanding the above-referenced limitations in Sections 4(b)(i), 4(b)(ii(d) and 4(b)(iii), such limitations shall not apply following the termination Because of the Participant’s employment with 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 8 and in this Section 9, 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 (as applicable) any of its subsidiaries in those portions each other member of the Market Area located within Company Group shall be entitled to enforce the State foregoing covenants, in the event of Oklahomaa 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. Instead, The aforementioned equitable relief shall not be the Participant agrees that, during the portion Company’s or any other member of the Prohibited Period that occurs after the Participant is no longer employed by the Company or any of its subsidiaries, the restrictions on the ParticipantGroup’s activities within those portions of the Market Area located within the State of Oklahoma (exclusive remedy for a breach but instead shall be in addition to those 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 9, 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 in Sections 1 and 4(b)(iv) herein) shall be as follows: are unreasonable, then it is the Participant will not directly or indirectly solicit the sale of goods, services, or a combination of goods and services from the established customers intention of the Company parties that such restrictions be enforced to the fullest extent which such arbitrator or of any of its subsidiariescourt deems reasonable, and this Agreement shall thereby be reformed.
c. For purposes of this Section 4, the (f) The following terms shall have the following meanings:
Appears in 2 contracts
Samples: Employment Agreement (ProPetro Holding Corp.), Employment Agreement (ProPetro Holding Corp.)
Non-Competition; Non-Solicitation. a. In granting (a) The Company shall provide Employee access to Confidential Information for use only during the Restricted Stock Unit Award to the ParticipantEmployment Period, and Employee acknowledges and agrees that the Company provides Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the Participant goodwill of the Company Group, and as a further condition of the Company providing Employee with access to Confidential Information and as an express incentive to build the Company’s goodwill and links the Participant’s interests to the Company’s long-term business interests. As an inducement for the Company to grant the Restricted Stock Unit Award and enter into this AgreementAgreement and employ Employee, and in order to protect the Confidential Information, and the Company’s and its subsidiaries goodwill, the Participant Employee has voluntarily agrees agreed to the covenants set forth in this Section 4(a)10. The Participant Employee is a member of the Company’s executive or management personnel, and Employee expressly agrees and acknowledges that Employee is receiving new and valuable consideration following Employee’s entry into this Agreement, and the limitations and restrictions set forth herein, including the geographical and temporal restrictions on certain competitive activities, are reasonable in all respects and respects, will not oppressive cause Employee undue hardship, and are material and substantial part parts of the Company’s willingness to enter into this Agreement, and are Agreement intended and necessary to prevent unfair competition and to protect the CompanyCompany Group’s and its subsidiaries’ Confidential Information, goodwill, and substantial goodwill and legitimate business interests.
b. The Participant agrees that during (b) During the Prohibited Period, the Participant Employee shall not, without the prior written approval of the CompanyBoard, directly or indirectly, for the Participant, Employee or on behalf of or in conjunction with any other person or entity of whatever any nature:
i. (i) engage in or carry on participate within the Market Area in competition with any member of the Company or any of its subsidiaries Group in any aspect of the Business, which prohibition shall prevent the Participant Employee from directly or indirectly: (A) owning, managing, operating, becoming or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company or Group in any of its subsidiaries, or capacity (B) in the Market Area, joining, becoming employee or consultant of, or otherwise being affiliated with any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries (in each case, with respect to this clause (B), in any capacity ) in which the ParticipantEmployee’s duties or responsibilities are the same as or similar to those performed for the duties or responsibilities that Employee had on behalf of any member of the Company or any of its subsidiaries) – for purposes of this provision, “primarily engage” means that at least twenty percent (20%) of the gross revenue of a person or entity’s business is from business directly competitive with the BusinessGroup;
(ii. ) appropriate any Business Opportunity of, or relating to, any member of the Company or any of its subsidiaries Group located in the Market Area;
(iii. within the Market Area, ) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company or any of its subsidiaries with whom or which the Participant had contact in the last 24 months of his or her employment with the Company or its subsidiaries or about whom or which the Participant obtained Confidential Information Group to cease or lessen such customer’s or supplier’s business with any member of the Company or any of its subsidiaries in the BusinessGroup; or
(iv. ) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company or any of its subsidiaries Group to terminate his, her or its employment or engagement therewith, excluding general advertisements and solicitations not targeted at the employees or contractors with any member of the Company or its subsidiariesGroup.
v. (c) Notwithstanding the foregoing,
(i) following the date that Employee is no longer employed by any member of the Company Group, the above-referenced limitations in Sections 4(b)(i10(b)(i), 4(b)(ii(ii) and 4(b)(iii), such limitations (iii) shall not apply following the termination of the Participant’s employment with the Company and (as applicable) any of its subsidiaries in those portions of the Market Area located within the State of Oklahoma. Instead, the Participant Employee agrees that, during the that portion of the Prohibited Period that occurs after begins following the Participant date that Employee is no longer employed by any member of the Company or any of its subsidiariesGroup, the restrictions on the ParticipantEmployee’s activities within those portions of the Market Area located within the State of Oklahoma (in addition to those restrictions set forth in Sections 1 9 and 4(b)(iv10(b)(iv) hereinabove) shall be as follows: the Participant Employee will not directly or indirectly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company or any other member of the Company Group.
(ii) The passive beneficial ownership by Employee of less than or equal to two percent of the outstanding publicly traded equity securities of any business that competes with any member of its subsidiariesthe Company Group in the Market Area shall not be a breach of this Agreement.
c. For purposes (d) 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 410, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(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 restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(f) The following terms shall have the following meanings:
Appears in 2 contracts
Samples: Employment Agreement (Hi-Crush Inc.), Employment Agreement (Hi-Crush Inc.)
Non-Competition; Non-Solicitation. a. In granting (a) The Bank shall provide Employee access to Confidential Information for use only during the Restricted Stock Unit Award to the ParticipantEmployment Period, and Employee acknowledges and agrees that the Company provides Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the Participant a further goodwill of the Company Group, and as an express incentive to build the Company’s goodwill and links the Participant’s interests to the Company’s long-term business interests. As an inducement for the Company Bank to grant the Restricted Stock Unit Award and enter into this Agreement, and in order to protect the Confidential Information, Agreement and the Company’s and its subsidiaries goodwillBank to employ Employee hereunder, the Participant Employee has voluntarily agrees agreed to the covenants set forth in this Section 4(a)11. The Participant Employee agrees and acknowledges that the limitations and restrictions set forth herein, including the geographical and temporal restrictions on certain competitive activities, are reasonable in all respects and respects, do not oppressive interfere with public interests, will not cause Employee undue hardship, and are material and substantial part parts of the Company’s willingness to enter into this Agreement, and are Agreement intended and necessary to prevent unfair competition and to protect the CompanyCompany Group’s and its subsidiaries’ Confidential Information, goodwill, and substantial goodwill and legitimate business interests.
b. The Participant agrees that during (b) During the Prohibited Period, the Participant Employee shall not, without the prior written approval of the CompanyBoards, directly or indirectly, for the Participant, Employee or on behalf of or in conjunction with any other person or entity of whatever any nature:
i. (i) engage in or carry on participate within the Market Area in competition with any member of the Company or any of its subsidiaries Group in any aspect of the Business, which prohibition shall prevent the Participant Employee from directly or indirectly: (A) owning, managing, operating, becoming or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company or Group in any of its subsidiaries, or capacity (B) in the Market Area, joining, becoming employee or consultant of, or otherwise being affiliated with any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries (in each case, with respect to this clause (B), in any capacity ) in which the ParticipantEmployee’s duties are the same or similar responsibilities involve any direct or indirect responsibilities with respect to those performed for the Company or any of its subsidiaries) – for purposes of this provision, “primarily engage” means that at least twenty percent (20%) of the gross revenue of a person or entity’s business is from business directly competitive with the Business;
(ii. ) appropriate any Business Opportunity of, or relating to, any member of the Company or any of its subsidiaries Group located in the Market AreaArea that a member of the Company Group is then considering or pursuing or of which Employee became aware during the Employment Period;
(iii. within the Market Area, ) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company or any of its subsidiaries Group with whom or which the Participant Employee had material contact in the last 24 months on behalf of his or her employment with any member of the Company or its subsidiaries Group or about whom or which the Participant Employee obtained Confidential Information to cease or lessen such customer’s or supplier’s business with any member of the Company or any of its subsidiaries in the BusinessGroup; or
(iv. ) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company or any of its subsidiaries Group to terminate his, her or its employment or engagement therewith, excluding general advertisements and solicitations not targeted at the employees or contractors with any member of the Company or its subsidiariesGroup.
v. Notwithstanding (c) Because of the above-referenced limitations difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Sections 4(b)(i)Section 10 and in this Section 11, 4(b)(ii) and 4(b)(iii)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, such limitations the Bank and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not apply following be the termination Bank’s or any other member of the ParticipantCompany Group’s employment with the Company and (as applicable) any of its subsidiaries in those portions of the Market Area located within the State of Oklahoma. Instead, the Participant agrees that, during the portion of the Prohibited Period that occurs after the Participant is no longer employed by the Company or any of its subsidiaries, the restrictions on the Participant’s activities within those portions of the Market Area located within the State of Oklahoma (exclusive remedy for a breach but instead shall be in addition to those all other rights and remedies available to the Bank and each other member of the Company Group at law and equity.
(d) The covenants in this Section 11, 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 in Sections 1 and 4(b)(iv) herein) shall be as follows: are unreasonable, then it is the Participant will not directly or indirectly solicit the sale of goods, services, or a combination of goods and services from the established customers intention of the Company parties that such restrictions be enforced to the fullest extent which such arbitrator or of any of its subsidiariescourt deems reasonable, and this Agreement shall thereby be reformed.
c. For purposes of this Section 4, the (e) The following terms shall have the following meanings:
Appears in 2 contracts
Samples: Employment Agreement (Republic First Bancorp Inc), Employment Agreement (Republic First Bancorp Inc)
Non-Competition; Non-Solicitation. a. In granting The Company shall provide Employee access to Confidential Information for use only during the Restricted Stock Unit Award to the ParticipantEmployment Period, and Employee acknowledges and agrees that the Company provides Group shall be entrusting Employee, in Employee’s unique and special capacity, with developing the Participant a further goodwill of the Company Group, and in consideration thereof and in consideration of the Company providing Employee with access to Confidential Information and as an express incentive to build the Company’s goodwill and links the Participant’s interests to the Company’s long-term business interests. As an inducement for the Company to grant the Restricted Stock Unit Award and enter into this AgreementAgreement and employ Employee, and in order to protect the Confidential Information, and the Company’s and its subsidiaries goodwill, the Participant Employee has voluntarily agrees agreed to the covenants set forth in this Section 4(a)9. The Participant Employee further agrees and acknowledges that the limitations and restrictions set forth herein, including the geographical and temporal restrictions on certain competitive activities, are reasonable in all respects and not oppressive oppressive, shall not cause Employee undue hardship, and are material and substantial part parts of the Company’s willingness to enter into this Agreement, and are Agreement intended and necessary to prevent unfair competition and to protect the CompanyCompany Group’s and its subsidiaries’ Confidential Information, goodwill, goodwill and substantial and legitimate business interests.
b. The Participant Employee agrees that that, during the Prohibited Period, the Participant Employee shall not, without the prior written approval of the CompanyBoard, directly or indirectly, for the Participant, Employee or on behalf of or in conjunction with any other person or entity of whatever any nature:
i. engage in or carry on participate within the Market Area in competition with any member of the Company or any of its subsidiaries Group in any aspect of the Business, which prohibition shall prevent the Participant Employee from directly or indirectly: (A) indirectly owning, managing, operating, joining, becoming an officer officer, director, employee or director of consultant of, or loaning money to, or selling or leasing equipment or real estate to or otherwise being affiliated with any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company or any of its subsidiaries, or (B) in the Market Area, joining, becoming employee or consultant of, or otherwise being affiliated with any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries (in each case, with respect to this clause (B), in any capacity in which the Participant’s duties are the same or similar to those performed for the Company or any of its subsidiaries) – for purposes of this provision, “primarily engage” means that at least twenty percent (20%) of the gross revenue of a person or entity’s business is from business directly competitive with the BusinessGroup;
ii. appropriate any Business Opportunity of, or relating to, the Company or any of its subsidiaries Group located in the Market Area;
iii. within the Market Area, solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company or any of its subsidiaries with whom or which the Participant had contact in the last 24 months of his or her employment with the Company or its subsidiaries or about whom or which the Participant obtained Confidential Information Group to cease or lessen such customer’s or supplier’s business with the Company or any of its subsidiaries in the BusinessGroup; or
iv. solicit, canvass, approach, encourage, entice or induce any employee or contractor of the Company or any of its subsidiaries Group to terminate his, her or its employment or engagement therewith, excluding general advertisements and solicitations not targeted at the employees or contractors with any member of the Company or its subsidiariesGroup.
v. Notwithstanding the above-referenced limitations in Sections 4(b)(i), 4(b)(ii) and 4(b)(iii), such limitations shall not apply following the termination c. Because of the Participant’s employment with 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 8 and in this Section 9, 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 (as applicable) any of its subsidiaries in those portions each other member of the Market Area located within Company Group shall be entitled to enforce the State foregoing covenants, in the event of Oklahomaa 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. Instead, The aforementioned equitable relief shall not be the Participant agrees that, during the portion Company’s or any other member of the Prohibited Period that occurs after the Participant is no longer employed by the Company or any of its subsidiaries, the restrictions on the ParticipantGroup’s activities within those portions of the Market Area located within the State of Oklahoma (exclusive remedy for a breach but instead shall be in addition to those all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
d. The covenants in this Section 9, 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 in Sections 1 and 4(b)(iv) herein) shall be as follows: are unreasonable, then it is the Participant will not directly or indirectly solicit the sale of goods, services, or a combination of goods and services from the established customers intention of the Company parties that such restrictions be enforced to the fullest extent which such arbitrator or of any of its subsidiariescourt deems reasonable, and this Agreement shall thereby be reformed.
c. e. For purposes of this Section 49, the following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation. a. In granting (a) The Company shall provide Employee access to Confidential Information for use only during the Restricted Stock Unit Award to the ParticipantEmployment Period, and Employee acknowledges and agrees that the Company provides Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the Participant a further goodwill of the Company Group, and in consideration of the Company providing Employee with access to Confidential Information, clients and customers and as an express incentive to build the Company’s goodwill and links the Participant’s interests to the Company’s long-term business interests. As an inducement for the Company to grant the Restricted Stock Unit Award and enter into this AgreementAgreement and employ Employee, and in order to protect the Confidential Information, and the Company’s and its subsidiaries goodwill, the Participant Employee has voluntarily agrees agreed to the covenants set forth in this Section 4(a)10. The Participant Employee agrees and acknowledges that the limitations and restrictions set forth herein, including the geographical and temporal restrictions on certain competitive activities, are reasonable in all respects and respects, do not oppressive interfere with public interests, will not cause Employee undue hardship, and are material and substantial part parts of the Company’s willingness to enter into this Agreement, and are Agreement intended and necessary to prevent unfair competition and to protect the CompanyCompany Group’s and its subsidiaries’ Confidential Information, goodwill, and substantial goodwill and legitimate business interests.
b. The Participant agrees that during (b) During the Prohibited Period, the Participant Employee shall not, without the prior written approval of the CompanyBoard, directly or indirectly, for the Participant, Employee or on behalf of or in conjunction with any other person or entity of whatever any nature:
i. (i) engage in or carry on participate in (or prepare to engage in or participate in) the Business within the Market Area in competition with the Company or any of its subsidiaries in any aspect of the BusinessArea, which prohibition shall prevent the Participant Employee from directly or indirectly: (A) owning, investing in, controlling, managing, operating, becoming participating in, lending Employee’s name to, contributing to, providing assistance to or being an officer or director of of, any person or entity primarily 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 primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries, or capacity (B) in the Market Area, joining, becoming employee or consultant of, or otherwise being affiliated with any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries (in each case, with respect to this clause (B), in any capacity ) in which the ParticipantEmployee’s customer or client relationships, duties or responsibilities are the same as or similar to those performed for the customer or client relationships, duties or responsibilities that Employee had on behalf of any member of the Company or any of its subsidiaries) – for purposes of this provision, “primarily engage” means that at least twenty percent (20%) of the gross revenue of a person or entity’s business is from business directly competitive with the BusinessGroup;
(ii. ) appropriate or interfere with or attempt to appropriate or interfere with any Business Opportunity of, or relating to, any member of the Company or any of its subsidiaries Group located in the Market Area;
(iii. within the Market Area, ) solicit, canvass, approach, encourage, entice or induce any customer customer, vendor or supplier of any member of the Company or any of its subsidiaries Group with whom or which the Participant Employee had contact in the last 24 months of his (including oversight responsibility) or her learned Confidential Information about during Employee’s employment with any member of the Company or its subsidiaries or about whom or which the Participant obtained Confidential Information 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 its subsidiaries in the Businessforegoing; or
(iv. ) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company or any of its subsidiaries Group to terminate his, her or its employment or engagement therewith, excluding general advertisements and solicitations not targeted at the employees or contractors with any member of the Company Group, or its subsidiaries.
v. hire or retain any such employee or contractor. Notwithstanding the above-referenced limitations in Sections 4(b)(i)foregoing, 4(b)(ii) and 4(b)(iii), such limitations nothing herein shall not apply following limit Employee’s ability to accept employment and perform work with any person or entity where (x) the termination of the Participant’s employment with the Company services provided by Employee to such person or entity are not, and (as applicable) any of its subsidiaries in those portions of the Market Area located within the State of Oklahoma. Instead, the Participant agrees that, during the portion of the Prohibited Period that occurs after the Participant is no longer employed by the Company or any of its subsidiaries, the restrictions on the Participant’s activities within those portions of the Market Area located within the State of Oklahoma (in addition to those restrictions set forth in Sections 1 and 4(b)(iv) herein) shall be as follows: the Participant will do not directly or indirectly solicit benefit any division or business of such person or entity that is, in competition with the sale of goods, services, Business or any other material business in which a combination of goods and services from the established customers member of the Company Group has made a significant financial investment on or prior to the date of termination to be engaged in on or after such date and (y) Employee 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 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. Employee further agrees that Employee will not challenge the reasonableness or enforceability of any of its subsidiaries.
c. For purposes the covenants set forth in this Section 10, and that Employee will reimburse the Company Group for all costs (including reasonable attorneys’ fees) incurred in connection with any action to enforce any of the provisions of this Section 410 if Employee challenges the reasonableness or enforceability of any of the provisions of this Section 10.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation. a. In granting (a) The Company shall provide Employee access to Confidential Information for use only during the Restricted Stock Unit Award to the ParticipantEmployment Period, and Employee acknowledges and agrees that the Company provides Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the Participant a further goodwill of the Company Group, and in consideration of the Company providing Employee with access to Confidential Information and as an express incentive to build the Company’s goodwill and links the Participant’s interests to the Company’s long-term business interests. As an inducement for the Company to grant the Restricted Stock Unit Award and enter into this AgreementAgreement and employ Employee hereunder, and in order to protect the Confidential Information, and the Company’s and its subsidiaries goodwill, the Participant Employee has voluntarily agrees agreed to the covenants set forth in this Section 4(a)10. The Participant Employee agrees and acknowledges that the limitations and restrictions set forth herein, including the geographical and temporal restrictions on certain competitive activities, are reasonable in all respects and respects, do not oppressive interfere with public interests, will not cause Employee undue hardship, and are material and substantial part parts of the Company’s willingness to enter into this Agreement, and are Agreement intended and necessary to prevent unfair competition and to protect the CompanyCompany Group’s and its subsidiaries’ Confidential Information, goodwill, and substantial goodwill and legitimate business interests.
b. The Participant agrees that during (b) During the Prohibited Period, the Participant Employee shall not, without the prior written approval of the CompanyBoard, directly or indirectly, for the Participant, Employee or on behalf of or in conjunction with any other person or entity of whatever any nature:
i. (i) engage in or carry on within the Market Area in competition with the Company or any of its subsidiaries in any aspect of the Businessparticipate, which prohibition shall prevent the Participant from directly or indirectly, in the following conduct: (A) owning, managing, operating, becoming or being an officer or director of, any business that competes with any member of the Company Group in the Market Area related to the space of electrifying the commercial vehicle (except for the ownership of up to 3.0% of the shares of common stock or securities or any entity whose common shares or securities are listed on a national securities exchange), or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company or Group in any of its subsidiaries, or capacity (B) in the Market Area, joining, becoming employee or consultant of, or otherwise being affiliated with any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries (in each case, with respect to this clause (B), in any capacity ) in which the ParticipantEmployee’s duties or responsibilities are the same as or similar to those performed for the duties or responsibilities that Employee had on behalf of any member of the Company or any of its subsidiaries) – for purposes of this provision, “primarily engage” means that at least twenty percent (20%) of the gross revenue of a person or entity’s business is from business directly competitive with the BusinessGroup;
(ii. appropriate any Business Opportunity of, or relating to, the Company or any of its subsidiaries located in the Market Area;
iii. within the Market Area, ) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company or any of its subsidiaries Group with whom or which the Participant Employee had personal contact in the last 24 months course of his or her employment with performing Employee’s duties for any member of the Company or its subsidiaries or about whom or which the Participant obtained Confidential Information Group to cease or lessen such customer’s or supplier’s business with any member of the Company or any of its subsidiaries in the BusinessGroup; or
iv. (iii) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company or any of its subsidiaries Group to terminate his, her or its employment or engagement therewith, excluding general advertisements and solicitations not targeted at the employees or contractors with any member of the Company Group. This provision shall not prohibit Employee from employing or its subsidiariesmaking an offer of employment to an employee or contractor of any member of the Company Group if such employment and/or offer resulted from a general solicitation or advertisement for applications in a newspaper, trade publication, on the Internet or other public forum.
v. Notwithstanding the above-referenced limitations in Sections 4(b)(i), 4(b)(ii(c) and 4(b)(iii), such limitations shall not apply following the termination Because of the Participant’s employment with 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 (as applicable) any of its subsidiaries in those portions each other member of the Market Area located within Company Group shall be entitled to enforce the State foregoing covenants, in the event of Oklahomaa 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. Instead, The aforementioned equitable relief shall not be the Participant agrees that, during the portion Company’s or any other member of the Prohibited Period that occurs after the Participant is no longer employed by the Company or any of its subsidiaries, the restrictions on the ParticipantGroup’s activities within those portions of the Market Area located within the State of Oklahoma (exclusive remedy for a breach but instead shall be in addition to those all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth in Sections 1 and 4(b)(iv) herein) shall be as follows: are unreasonable, then it is the Participant will not directly or indirectly solicit the sale of goods, services, or a combination of goods and services from the established customers intention of the Company or of any of its subsidiariesparties that such restrictions be enforced to the fullest extent which such court deems reasonable, and this Agreement shall thereby be reformed.
c. For purposes of this Section 4, the (e) The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation. a. In granting (a) The Company shall provide Employee access to Confidential Information for use only during the Restricted Stock Unit Award to the ParticipantEmployment Period, and Employee acknowledges and agrees that the Company provides Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the Participant a further goodwill of the Company Group, and in consideration of the Company providing Employee with access to Confidential Information, clients and customers and as an express incentive to build the Company’s goodwill and links the Participant’s interests to the Company’s long-term business interests. As an inducement for the Company to grant the Restricted Stock Unit Award and enter into this AgreementAgreement and employ Employee, and in order to protect the Confidential Information, and the Company’s and its subsidiaries goodwill, the Participant Employee has voluntarily agrees agreed to the covenants set forth in this Section 4(a)10. The Participant Employee agrees and acknowledges that the limitations and restrictions set forth herein, including the geographical and temporal restrictions on certain competitive activities, are reasonable in all respects and respects, do not oppressive interfere with public interests, will not cause Employee undue hardship, and are material and substantial part parts of the Company’s willingness to enter into this Agreement, and are Agreement intended and necessary to prevent unfair competition and to protect the CompanyCompany Group’s and its subsidiaries’ Confidential Information, goodwill, and substantial goodwill and legitimate business interests.
b. The Participant agrees that during (b) During the Prohibited Period, the Participant Employee shall not, without the prior written approval of the CompanyBoard, directly or indirectly, for the Participant, Employee or on behalf of or in conjunction with any other person or entity of whatever any nature:
i. (i) engage in or carry on participate in (or prepare to engage in or participate in) the Business within the Market Area in competition with the Company or any of its subsidiaries in any aspect of the BusinessArea, which prohibition shall prevent the Participant Employee from directly or indirectly: (A) owning, investing in, controlling, managing, operating, becoming participating in, lending Employee’s name to, contributing to, providing assistance to or being an officer or director of of, any person or entity primarily 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 primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries, or capacity (B) in the Market Area, joining, becoming employee or consultant of, or otherwise being affiliated with any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries (in each case, with respect to this clause (B), in any capacity ) in which the ParticipantEmployee’s customer or client relationships, duties or responsibilities are the same as or similar to those performed for the customer or client relationships, duties or responsibilities that Employee had on behalf of any member of the Company or any of its subsidiaries) – for purposes of this provision, “primarily engage” means that at least twenty percent (20%) of the gross revenue of a person or entity’s business is from business directly competitive with the BusinessGroup;
(ii. ) appropriate or interfere with or attempt to appropriate or interfere with any Business Opportunity of, or relating to, any member of the Company or any of its subsidiaries Group located in the Market Area;
(iii. within the Market Area, ) solicit, canvass, approach, encourage, entice or induce any customer customer, vendor or supplier of any member of the Company or any of its subsidiaries Group with whom or which the Participant Employee had contact in the last 24 months of his (including oversight responsibility) or her learned Confidential Information about during Employee’s employment with any member of the Company or its subsidiaries or about whom or which the Participant obtained Confidential Information 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 its subsidiaries in the Businessforegoing; or
(iv. ) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company or any of its subsidiaries Group to terminate his, her or its employment or engagement therewith, excluding general advertisements and solicitations not targeted at the employees or contractors with any member of the Company Group, or its subsidiarieshire or retain any such employee or contractor.
v. Notwithstanding the above-referenced limitations in Sections 4(b)(i), 4(b)(ii(c) and 4(b)(iii), such limitations shall not apply following the termination Because of the Participant’s employment with 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 (as applicable) any of its subsidiaries in those portions each other member of the Market Area located within Company Group shall be entitled to enforce the State foregoing covenants, in the event of Oklahomaa 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. Instead, The aforementioned equitable relief shall not be the Participant agrees that, during the portion Company’s or any other member of the Prohibited Period that occurs after the Participant is no longer employed by the Company or any of its subsidiaries, the restrictions on the ParticipantGroup’s activities within those portions of the Market Area located within the State of Oklahoma (exclusive remedy for a breach but instead shall be in addition to those all other rights and remedies available to the Company and each other member of the Company Group at law and equity. Employee further agrees that Employee will not challenge the scope or reasonableness of any of the covenants set forth in this Section 10, and that Employee will reimburse the Company Group for all costs (including reasonable attorneys’ fees) incurred in connection with any action to enforce any of the provisions of this Section 10 if Employee challenges the scope or reasonableness of any of the provisions of this Section 10.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth in Sections 1 and 4(b)(iv) herein) shall be as follows: are unreasonable, then it is the Participant will not directly or indirectly solicit the sale of goods, services, or a combination of goods and services from the established customers intention of the Company parties that such restrictions be enforced to the fullest extent which such arbitrator or of any of its subsidiariescourt deems reasonable, and this Agreement shall thereby be reformed.
c. For purposes of this Section 4, the (e) The following terms shall have the following meanings:
Appears in 1 contract
Samples: Employment Agreement (Shoals Technologies Group, Inc.)
Non-Competition; Non-Solicitation. a. In granting the Restricted Stock Unit Award (a) The Company shall provide Executive access to the ParticipantConfidential Information for use only during the Employment Period, and Executive acknowledges and agrees that the Company provides Group will be entrusting Executive, in Executive’s unique and special capacity, with developing the Participant a further goodwill of the Company Group, and in consideration thereof and in consideration of the Company providing Executive with access to Confidential Information and as an express incentive to build the Company’s goodwill and links the Participant’s interests to the Company’s long-term business interests. As an inducement for the Company to grant the Restricted Stock Unit Award and enter into this AgreementAgreement and employ Executive, and in order to protect the Confidential Information, and the Company’s and its subsidiaries goodwill, the Participant Executive has voluntarily agrees agreed to the covenants set forth in this Section 4(a)10. The Participant Executive further agrees and acknowledges that the limitations and restrictions set forth herein, including the geographical and temporal restrictions on certain competitive activities, are reasonable in all respects and not oppressive oppressive, will not cause Executive undue hardship, and are material and substantial part parts of the Company’s willingness to enter into this Agreement, and are Agreement intended and necessary to prevent unfair competition and to protect the CompanyCompany Group’s and its subsidiaries’ Confidential Information, goodwill, goodwill and substantial and legitimate business interests.
b. The Participant (b) Executive agrees that that, during the Prohibited Period, the Participant Executive shall not, without the prior written approval of the Company, directly or indirectly, for the Participant, Executive or on behalf of or in conjunction with any other person or entity of whatever nature:
i. (i) engage in or carry on participate within the Market Area in competition with any member of the Company or any of its subsidiaries Group in any aspect of the Business, which such prohibition shall prevent Executive from, within the Participant from directly or indirectly: Market Area, (A) directly or indirectly owning, managing, operating, joining, becoming an officer officer, director, employee or director consultant of any person or entity primarily engaged in, or planning to primarily engage in, the such Business in the Market Area in competition, or anticipated competition, with any member of the Company or any of its subsidiariesGroup, or and (B) in the Market Area, joining, becoming employee loaning money to or consultant ofselling or leasing equipment or real estate to, or otherwise being affiliated with any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries (in each case, with respect to this clause (B), in any capacity in which the Participant’s duties are the same or similar to those performed for the Company or any of its subsidiaries) – for purposes of this provision, “primarily engage” means that at least twenty percent (20%) of the gross revenue of a such person or entity’s business is from business directly competitive , in either case in connection with any competition or anticipated competition in any aspect of the Business;
(ii. ) appropriate any Business Opportunity of, or relating to, the Company or any of its subsidiaries Group located in the Market Area;
(iii. within the Market Area, ) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company or any of its subsidiaries with whom or which the Participant had contact in the last 24 months of his or her employment with the Company or its subsidiaries or about whom or which the Participant obtained Confidential Information Group to cease or lessen such customer’s or supplier’s business with the Company or any of its subsidiaries in the BusinessGroup; or
(iv. ) solicit, canvass, approach, encourage, entice or induce any employee or contractor of the Company or any of its subsidiaries Group to terminate his, her or its employment or engagement therewith, excluding general advertisements and solicitations not targeted at the employees or contractors with any member of the Company or its subsidiariesGroup.
v. Notwithstanding (c) Because of the above-referenced limitations difficulty of measuring economic losses to the Company Group as a result of a breach of the covenants set forth in Sections 4(b)(i)Section 9 and in this Section 10, 4(b)(ii) and 4(b)(iii)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, Executive agrees that the Company shall be entitled to enforce the foregoing covenants, in the event of a breach, by injunctions and restraining orders and that such limitations enforcement shall not apply following be the termination of the ParticipantCompany’s employment with the Company and (as applicable) any of its subsidiaries in those portions of the Market Area located within the State of Oklahoma. Instead, the Participant agrees that, during the portion of the Prohibited Period that occurs after the Participant is no longer employed by the Company or any of its subsidiaries, the restrictions on the Participant’s activities within those portions of the Market Area located within the State of Oklahoma (exclusive remedy for a breach but instead shall be in addition to those all other rights and remedies available to the Company at law and equity.
(d) The covenants in this Section 10 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 in Sections 1 and 4(b)(iv) herein) shall be as follows: are unreasonable, then it is the Participant will not directly or indirectly solicit the sale of goods, services, or a combination of goods and services from the established customers intention of the Company parties that such restrictions be enforced to the fullest extent which the arbitrator or of any of its subsidiariescourt deems reasonable, and this Agreement shall thereby be reformed.
c. (e) For purposes of this Section 410, the following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation. a. In granting (a) The Company shall provide Executive access to Confidential Information for use only during the Restricted Stock Unit Award to the ParticipantEmployment Period, and Executive acknowledges and agrees that the Company provides Group will be entrusting Executive, in Executive’s unique and special capacity, with developing the Participant a further goodwill of the Company Group, and in consideration of the Company providing Executive with access to Confidential Information and as an express incentive to build the Company’s goodwill and links the Participant’s interests to the Company’s long-term business interests. As an inducement for the Company to grant the Restricted Stock Unit Award and enter into this AgreementAgreement and employ Executive hereunder, and in order to protect the Confidential Information, and the Company’s and its subsidiaries goodwill, the Participant Executive has voluntarily agrees agreed to the covenants set forth in this Section 4(a)10. The Participant Executive agrees and acknowledges that the limitations and restrictions set forth herein, including the geographical and temporal restrictions on certain competitive activities, are reasonable in all respects and respects, do not oppressive interfere with public interests, will not cause Executive undue hardship, and are material and substantial part parts of the Company’s willingness to enter into this Agreement, and are Agreement intended and necessary to prevent unfair competition and to protect the CompanyCompany Group’s and its subsidiaries’ Confidential Information, goodwill, and substantial goodwill and legitimate business interests.
b. The Participant agrees that during (b) During the Prohibited Period, the Participant Executive shall not, without the prior written approval of the CompanyBoard, directly or indirectly, for the Participant, Executive or on behalf of or in conjunction with any other person or entity of whatever any nature:
i. (i) engage in or carry on participate within the Market Area in competition with any member of the Company or any of its subsidiaries Group in any aspect of the Business, which prohibition shall prevent the Participant Executive from directly or indirectly: (A) owning, managing, operating, becoming or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with or providing services to, any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company or Group in any of its subsidiaries, or capacity (B) in the Market Area, joining, becoming employee or consultant of, or otherwise being affiliated with any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries (in each case, with respect to this clause (B), in any capacity ) in which the ParticipantExecutive’s duties are the same or similar responsibilities involve direct or indirect responsibilities with respect to those performed for the Company or any of its subsidiaries) – for purposes of this provision, “primarily engage” means that at least twenty percent (20%) of the gross revenue of a person or entity’s business is from business directly competitive with the Business;.
(ii. ) appropriate any Business Opportunity of, or relating to, any member of the Company or any of its subsidiaries Group located in the Market Area;
(iii. within the Market Area, ) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company or any of its subsidiaries Group with whom or which the Participant Executive had contact in the last 24 months on behalf of his or her employment with any member of the Company or its subsidiaries Group or about whom or which the Participant Executive obtained Confidential Information or for whom or which Executive had direct or indirect responsibilities on behalf of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company or any of its subsidiaries in the BusinessGroup; or
(iv. ) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company or any of its subsidiaries Group to terminate his, her or its employment or engagement therewith, excluding general advertisements and solicitations not targeted at the employees or contractors with any member of the Company Group or its subsidiarieshire or engage any employee or contractor of any member of the Company Group.
v. Notwithstanding the above-referenced limitations in Sections 4(b)(i), 4(b)(ii(c) and 4(b)(iii), such limitations shall not apply following the termination Because of the Participant’s employment with 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 (as applicable) any of its subsidiaries in those portions each other member of the Market Area located within Company Group shall be entitled to enforce the State foregoing covenants, in the event of Oklahomaa 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. Instead, The aforementioned equitable relief shall not be the Participant agrees that, during the portion Company’s or any other member of the Prohibited Period that occurs after the Participant is no longer employed by the Company or any of its subsidiaries, the restrictions on the ParticipantGroup’s activities within those portions of the Market Area located within the State of Oklahoma (exclusive remedy for a breach but instead shall be in addition to those all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth in Sections 1 and 4(b)(iv) herein) shall be as follows: are unreasonable, then it is the Participant will not directly or indirectly solicit the sale of goods, services, or a combination of goods and services from the established customers intention of the Company parties that such restrictions be enforced to the fullest extent which such arbitrator or of any of its subsidiariescourt deems reasonable, and this Agreement shall thereby be reformed.
c. For purposes of this Section 4, the (e) The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation. a. In granting the Restricted Stock Unit this Award to the Participant, the Company provides the Participant a further incentive to build the Company’s goodwill and links the Participant’s interests to the Company’s long-term business interests. As an inducement for the Company to grant the Restricted Stock Unit this Award and enter into this Agreement, and in order to protect the Confidential Information, Information and the Company’s and its subsidiaries goodwill, the Participant voluntarily agrees to the covenants set forth in this Section 4(a)4. The Participant agrees and acknowledges that the limitations and restrictions set forth herein, including the geographical and temporal restrictions on certain activities, are (i) reasonable in all respects and not oppressive and are oppressive, (ii) a material and substantial part of the Company’s willingness to enter into this Agreement, and are (iii) intended and necessary to protect the Company’s and its subsidiaries’ Confidential Information, goodwill, and substantial and legitimate business interests.
b. The Participant agrees that during the Prohibited Period, the Participant shall not, without prior written approval of the Company, directly or indirectly, for the Participant, or on behalf of or in conjunction with any other person or entity of whatever nature:
i. engage in or carry on within the Market Area in competition with the Company or any of its subsidiaries in any aspect of the Business, which prohibition shall prevent the Participant from directly or indirectly: (A) indirectly owning, managing, operating, becoming an officer or director of any person or entity primarily engaged inofficer, or planning to primarily engage indirector, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries, or (B) in the Market Area, joining, becoming employee or consultant of, or otherwise being affiliated with any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area (A) in competition, any capacity if the Participant is a Vice President or anticipated competition, with above at the Company or any of its subsidiaries (in each case, with respect to this clause and (B), ) in any capacity in which the Participant’s duties are the same or similar to those performed for the Company or any of its subsidiaries) – subsidiaries if the Participant is below the level of a Vice President at the Company; for purposes of this provision, “primarily engage” means that at least twenty percent (20%) of the gross revenue of a person or entity’s business is from business directly competitive with the Business;Business;
ii. appropriate any Business Opportunity of, or relating to, the Company or any of its subsidiaries located in the Market Area;Area;
iii. within the Market Area, solicit, canvass, approach, encourage, entice or induce any (A) current customer or supplier of the Company or any of its subsidiaries with whom or which the Participant had contact in the last 24 twenty-four (24) months of his or her employment with the Company or its subsidiaries, (B) Prospective Customer or Supplier with whom or which the Participant had contact in the last six (6) months of his or her employment with the Company or its subsidiaries or (C) any such customer, supplier or Prospective Customer or Supplier about whom or which the Participant obtained Confidential Information Information, in each such case, to cease or lessen such customer’s or supplier’s or Prospective Customer’s or Supplier’s business with the Company or any of its subsidiaries in the Business; orBusiness;
iv. solicit, canvass, approach, encourage, entice or induce any employee or contractor of the Company or any of its subsidiaries to terminate his, her or its employment or engagement therewith, excluding general advertisements and solicitations not targeted at the employees or contractors of the Company or its subsidiaries.; or
v. employ or cause any other person or entity to employ any person who was an employee or contractor of the Company or any of its subsidiaries in the past six (6) months. Notwithstanding the above-above referenced limitations in Sections 4(b)(i), 4(b)(ii) and 4(b)(iii), such limitations shall not apply following the termination of the Participant’s employment with the Company and (as applicable) any of its subsidiaries in those portions of the Market Area located within the State of Oklahoma. Instead, the Participant agrees that, during the portion of the Prohibited Period that occurs after the Participant is no longer employed by the Company or any of its subsidiaries, the restrictions on the Participant’s activities within those portions of the Market Area located within the State of Oklahoma (in addition to those restrictions set forth in Sections 1 and 4(b)(iv) and (v) herein) shall be as follows: the Participant will not directly or indirectly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company or of any of its subsidiaries.
c. For purposes of this Section 4, the following terms shall have the following meanings:
Appears in 1 contract
Samples: Performance Based Restricted Stock Unit Award Agreement (Key Energy Services Inc)
Non-Competition; Non-Solicitation. a. In granting the Restricted Stock Unit Award to the Participant, the Company provides the Participant a further incentive to build the Company’s goodwill and links the Participant’s interests to the Company’s long-term business interests. (i) As an inducement for the Company to grant the Restricted Stock Unit Award hire Executive and enter into this Agreement, and in order to protect the Confidential Information, and the Company’s and its subsidiaries goodwill, the Participant Executive voluntarily agrees to the covenants set forth in this Section 4(a10(c). The Participant Executive agrees and acknowledges that the limitations and restrictions set forth herein, including the geographical and temporal restrictions on certain activities, are reasonable in all respects and not oppressive and are a material and substantial part of the Company’s willingness to enter into this Agreement, and are intended and necessary to protect the Company’s and its subsidiaries’ Confidential Information, goodwill, and substantial and legitimate business interests.
b. The Participant (ii) Executive agrees that during the Prohibited Period, the Participant Executive shall not, without prior written approval of the Company, directly or indirectly, for the ParticipantExecutive, or on behalf of or in conjunction with any other person or entity of whatever nature:
i. (A) engage in or carry on within the Market Area in competition with the Company or any of its subsidiaries in any aspect of the Business, which prohibition shall prevent the Participant Executive from directly or indirectly: (Ay) owning, managing, operating, becoming an officer or director of any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiariesCompany, or (Bz) in the Market Area, joining, becoming employee or consultant of, or otherwise being affiliated with any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries (in each case, with respect to this clause (Bz), in any capacity in which the ParticipantExecutive’s duties are the same or similar to those performed for the Company or any of its subsidiariesCompany) – for purposes of this provision, “primarily engage” means that at least twenty percent (20%) of the gross revenue of a person or entity’s business is from business directly competitive with the Business;
ii. (B) appropriate any Business Opportunity of, or relating to, the Company or any of its subsidiaries located in the Market Area;
iii. (C) within the Market Area, solicit, canvass, approach, encourage, entice or induce any customer or supplier of the Company or any of its subsidiaries with whom or which the Participant Executive had contact in the last 24 twenty-four months of his or her employment with the Company or its subsidiaries or about whom or which the Participant Executive obtained Confidential Information to cease or lessen such customer’s or supplier’s business with the Company or any of its subsidiaries in the Business; or
iv. (D) solicit, canvass, approach, encourage, entice or induce any employee or contractor of the Company or any of its subsidiaries to terminate his, her or its employment or engagement therewith, excluding general advertisements and solicitations not targeted at the employees or contractors of the Company or its subsidiariesCompany.
v. (E) Notwithstanding the above-referenced limitations in Sections 4(b)(i10(c)(ii)(A), 4(b)(ii(B) and 4(b)(iii(C), such limitations shall not apply following the termination of the ParticipantExecutive’s employment with the Company and (as applicable) any of its subsidiaries in those portions of the Market Area located within the State of Oklahoma. Instead, the Participant Executive agrees that, during the portion of the Prohibited Period that occurs after the Participant Executive is no longer employed by the Company or any of its subsidiariesCompany, the restrictions on the ParticipantExecutive’s activities within those portions of the Market Area located within the State of Oklahoma (in addition to those restrictions set forth in Sections 1 10(a) and 4(b)(iv10(c)(ii)(D) herein) shall be as follows: the Participant Executive will not directly or indirectly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company or of any of its subsidiariesCompany.
c. (iii) For purposes of this Section 410(c), the following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation. a. In granting (a) The Company shall provide Employee access to Confidential Information for use only during the Restricted Stock Unit Award to the ParticipantEmployment Period, and Employee acknowledges and agrees that the Company provides Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the Participant a further goodwill of the Company Group, and in consideration of the Company providing Employee with access to Confidential Information and as an express incentive to build the Company’s goodwill and links the Participant’s interests to the Company’s long-term business interests. As an inducement for the Company to grant the Restricted Stock Unit Award and enter into this AgreementAgreement and employ Employee hereunder, and in order to protect the Confidential Information, and the Company’s and its subsidiaries goodwill, the Participant Employee has voluntarily agrees agreed to the covenants set forth in this Section 4(a)10. The Participant Employee agrees and acknowledges that the limitations and restrictions set forth herein, including the geographical and temporal restrictions on certain competitive activities, are reasonable in all respects and respects, do not oppressive interfere with public interests, will not cause Employee undue hardship, and are material and substantial part parts of the Company’s willingness to enter into this Agreement, and are Agreement intended and necessary to prevent unfair competition and to protect the CompanyCompany Group’s and its subsidiaries’ Confidential Information, goodwill, and substantial goodwill and legitimate business interests.
b. The Participant agrees that during (b) During the Prohibited Period, the Participant Employee shall not, without the prior written approval of the CompanyBoard, directly or indirectly, for the Participant, Employee or on behalf of or in conjunction with any other person or entity of whatever any nature:
i. (i) engage in or carry on within the Market Area in competition with the Company or any of its subsidiaries in any aspect of the Businessparticipate, which prohibition shall prevent the Participant from directly or indirectly, in the following conduct: (A) owning, managing, operating, becoming or being an officer or director of, any business that competes with any member of the Company Group in the Market Area related to the Business (except for the ownership of up to 3.0% of the shares of common stock or securities or any entity whose common shares or securities are listed on a national securities exchange), or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company or Group in any of its subsidiaries, or capacity (B) in the Market Area, joining, becoming employee or consultant of, or otherwise being affiliated with any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries (in each case, with respect to this clause (B), in any capacity ) in which the ParticipantEmployee’s duties or responsibilities are the same as or similar to those performed for the duties or responsibilities that Employee had on behalf of any member of the Company or any of its subsidiaries) – for purposes of this provision, “primarily engage” means that at least twenty percent (20%) of the gross revenue of a person or entity’s business is from business directly competitive with the BusinessGroup;
(ii. appropriate any Business Opportunity of, or relating to, the Company or any of its subsidiaries located in the Market Area;
iii. within the Market Area, ) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company or any of its subsidiaries Group with whom or which the Participant Employee had personal contact in the last 24 months course of his or her employment with performing Employee’s duties for any member of the Company or its subsidiaries or about whom or which the Participant obtained Confidential Information Group to cease or lessen such customer’s or supplier’s business with any member of the Company or any of its subsidiaries in the BusinessGroup; or
iv. (iii) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company or any of its subsidiaries Group to terminate or reduce his, her or its employment or engagement therewith, excluding general advertisements and solicitations not targeted at the employees or contractors with any member of the Company Group. This provision shall not prohibit Employee from employing or its subsidiariesmaking an offer of employment to an employee or contractor of any member of the Company Group if such employment and/or offer resulted from a general solicitation or advertisement for applications in a newspaper, trade publication, on the Internet or other public forum.
v. Notwithstanding (c) Because of the above-referenced limitations difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Sections 4(b)(i)Section 9 and in this Section 10, 4(b)(ii) and 4(b)(iii)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, such limitations the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not apply following be the termination Company’s or any other member of the ParticipantCompany Group’s employment 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.
(i) If Employee violates his/her obligations during the Prohibited Period and the Company (or relevant member of the Company Group) brings legal action for injunctive or other relief under Sections 9 and/or 10, the applicable Restricted Period shall be tolled by such court of competent jurisdiction so that the Company Group shall not be deprived of the benefit of the full Prohibited Period.
(ii) During the Prohibited Period, Executive expressly agrees to notify any prospective employer or affiliate in the restricted Business and Market Area of his/her obligations during the Prohibited Period and authorizes the Company to make contact with, any person or affiliate reasonably believed by the Company Group to be engaged or about to be engaged in an act that would constitute a violation of Employee’s obligations under this Agreement. Employee hereby waives, and releases the Company Group from, any claims whatsoever arising in connection with the Company Group’s contact or discussions with such person or affiliate.
(a) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (as applicableor portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any court of its subsidiaries in those portions of competent jurisdiction shall determine that the Market Area located within the State of Oklahoma. Insteadscope, the Participant agrees that, during the portion of the Prohibited Period that occurs after the Participant is no longer employed by the Company time or any of its subsidiaries, the restrictions on the Participant’s activities within those portions of the Market Area located within the State of Oklahoma (in addition to those territorial restrictions set forth in Sections 1 and 4(b)(iv) herein) shall be as follows: are unreasonable, then it is the Participant will not directly or indirectly solicit the sale of goods, services, or a combination of goods and services from the established customers intention of the Company or of any of its subsidiariesparties that such restrictions be enforced to the fullest extent which such court deems reasonable, and this Agreement shall thereby be reformed.
c. For purposes of this Section 4, the (b) The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation. a. (a) In granting the Restricted Stock Unit Award to the Participant, the Company provides the Participant a further incentive to build the Company’s goodwill Employment Agreement of Xxxxxx Xxxxxx and links the Participant’s interests to the Company’s long-term business interests. As an inducement for the Company to grant the Restricted Stock Unit Award and enter into this Agreement, and in order to protect the Confidential Information, and the Company’s and its subsidiaries goodwill, the Participant voluntarily agrees to the covenants set forth in this Section 4(a). The Participant agrees and acknowledges that the limitations and restrictions set forth herein, including the geographical and temporal restrictions on certain activities, are reasonable in all respects and not oppressive and are material and substantial part of the Company’s willingness to enter into this Agreement, and are intended and necessary to protect the Company’s and its subsidiaries’ Confidential Information, goodwill, and substantial and legitimate business interests.
b. (b) The Participant agrees that during the Prohibited Period, the Participant shall not, without prior written approval of the Company, directly or indirectly, for the Participant, or on behalf of or in conjunction with any other person or entity of whatever nature:
i. (i) engage in or carry on within the Market Area in competition with the Company or any of its subsidiaries in any aspect of the Business, which prohibition shall prevent the Participant from directly or indirectly: (A) indirectly owning, managing, operating, becoming an officer or director of any person or entity primarily engaged inofficer, or planning to primarily engage indirector, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries, or (B) in the Market Area, joining, becoming employee or consultant of, or otherwise being affiliated with any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area (x) in competition, any capacity if the Participant is a Vice President or anticipated competition, with above at the Company or any of its subsidiaries and (in each case, with respect to this clause (B), y) in any capacity in which the Participant’s duties are the same or similar to those performed for the Company or any of its subsidiaries) – subsidiaries if the Participant is below the level of a Vice President at the Company; for purposes of this provision, “primarily engage” means that at least twenty percent (20%) of the gross revenue of a person or entity’s business is from business directly competitive with the Business;
(ii. ) appropriate any Business Opportunity of, or relating to, the Company or any of its subsidiaries located in the Market Area;
(iii. ) within the Market Area, solicit, canvass, approach, encourage, entice or induce any (i) current customer or supplier of the Company or any of its subsidiaries with whom or which the Participant had contact in the last 24 months of his or her employment with the Company or its subsidiaries, (ii) Prospective Customer or Supplier with whom or which the Participant had contact in the last 6 months of his or her employment with the Company or its subsidiaries or (iii) any such customer, supplier or Prospective Customer or Supplier about whom or which the Participant obtained Confidential Information to cease or lessen such customer’s or supplier’s or Prospective Customer’s or Supplier’s business with the Company or any of its subsidiaries in the Business; or;
(iv. ) solicit, canvass, approach, encourage, entice or induce any employee or contractor of the Company or any of its subsidiaries to terminate his, her or its employment or engagement therewith, excluding general advertisements and solicitations not targeted at the employees or contractors of the Company or its subsidiaries.; or Employment Agreement of Xxxxxx Xxxxxx
v. (v) employ or cause any other person or entity to employ any person who was an employee or contractor of the Company or any of its subsidiaries in the past six (6) months. Notwithstanding the above-above referenced limitations in Sections 4(b)(i), 4(b)(ii) and 4(b)(iii), such limitations shall not apply following the termination of the Participant’s employment with the Company and (as applicable) any of its subsidiaries in those portions of the Market Area located within the State of Oklahoma. Instead, the Participant agrees that, during the portion of the Prohibited Period that occurs after the Participant is no longer employed by the Company or any of its subsidiaries, the restrictions on the Participant’s activities within those portions of the Market Area located within the State of Oklahoma (in addition to those restrictions set forth in Sections 1 and 4(b)(iv) herein) shall be as follows: the Participant will not directly or indirectly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company or of any of its subsidiaries.
c. (c) For purposes of this Section 4, the following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation. a. In (a) The Company has provided and shall, during the Employment Period, continue to provide Employee access to Confidential Information for use only during the Employment Period, and Employee acknowledges and agrees that the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill of the Company Group, and in consideration of the Company providing Employee with access to Confidential Information, in further consideration of Parent granting restricted shares to Employee pursuant to the Restricted Stock Unit Award to the ParticipantAgreement, the Company provides the Participant a further and as an express incentive to build the Company’s goodwill and links the Participant’s interests to the Company’s long-term business interests. As an inducement for the Company to grant the Restricted Stock Unit Award and enter into this AgreementAgreement and employ Employee hereunder, and in order to protect the Confidential Information, and the Company’s and its subsidiaries goodwill, the Participant Employee has voluntarily agrees agreed to the covenants set forth in this Section 4(a)10. The Participant Employee agrees and acknowledges that the limitations and restrictions set forth herein, including the geographical and temporal restrictions on certain competitive activities, are reasonable in all respects and respects, will not oppressive cause Employee undue hardship, and are material and substantial part parts of the Company’s willingness to enter into this Agreement, and are Agreement intended and necessary to prevent unfair competition and to protect the CompanyCompany Group’s and its subsidiaries’ Confidential Information, goodwill, and substantial goodwill and legitimate business interests.
b. The Participant agrees that during (b) During the Prohibited Period, the Participant Employee shall not, without the prior written approval of the CompanyBoard, directly or indirectly, for the Participant, Employee or on behalf of or in conjunction with any other person or entity of whatever any nature:
i. (i) engage in or carry on participate within the Market Area in competition with any member of the Company or any of its subsidiaries Group in any aspect of the Business, which prohibition shall prevent the Participant Employee from directly or indirectly: (A) owning, managing, operating, becoming or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company or Group in any of its subsidiaries, or capacity (B) in the Market Area, joining, becoming employee or consultant of, or otherwise being affiliated with any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries (in each case, with respect to this clause (B), in any capacity ) in which the ParticipantEmployee’s duties or responsibilities are the same as or similar to those performed for the duties or responsibilities that Employee had on behalf of any member of the Company or any of its subsidiaries) – for purposes of this provision, “primarily engage” means that at least twenty percent (20%) of the gross revenue of a person or entity’s business is from business directly competitive with the BusinessGroup;
(ii. ) appropriate any Business Opportunity of, or relating to, any member of the Company or any of its subsidiaries Group located in the Market Area;
(iii. within the Market Area, ) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company or any of its subsidiaries with whom or which the Participant had contact in the last 24 months of his or her employment with the Company or its subsidiaries or about whom or which the Participant obtained Confidential Information Group to cease or lessen such customer’s or supplier’s business with any member of the Company or any of its subsidiaries in the BusinessGroup; or
(iv. ) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company or any of its subsidiaries Group to terminate his, her or its employment or engagement therewith, excluding general advertisements and solicitations not targeted at the employees or contractors with any member of the Company or its subsidiariesGroup.
v. (c) Notwithstanding the foregoing, following the Termination Date, the above-referenced limitations in Sections 4(b)(i10(b)(i), 4(b)(ii(ii) and 4(b)(iii), such limitations (iii) shall not apply following the termination of the Participant’s employment with the Company and (as applicable) any of its subsidiaries in those portions of the Market Area located within the State of Oklahoma. Instead, the Participant Employee agrees that, during following the portion of the Prohibited Period that occurs after the Participant is no longer employed by the Company or any of its subsidiariesTermination Date, the restrictions on the ParticipantEmployee’s activities within those portions of the Market Area located within the State of Oklahoma (in addition to those restrictions set forth in Sections 1 and 4(b)(ivSection 10(b)(iv) hereinabove) shall be as follows: during that portion of the Participant Prohibited Period that follows the Termination Date, Employee will not directly or indirectly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company or any other member of the Company Group. Further, Employee will not be deemed to be engaging in the Business in violation of Section 10(b)(i)(B) by virtue of performing duties similar to those performed for a member of the Company Group in the course of employment with an entity whose primary business is as an operator in the oil and gas exploration and production industry (an “Operator”), so long as such Operator only performs the services that constitute the Business for its own operations, and such Operator does not perform such services for customers.
(d) Notwithstanding the restrictions contained in Section 10(b)(i), (ii) and (iii), Employee may own an interest in a private equity fund or hedge fund that has a direct or indirect investment in a company engaged in the Business that competes or has plans to compete with the Company (a “Competitor”) so long as such investment contemplated by this Section 10(d) is not (A) directly in, or directly tied to, equity interests of the Competitor and (B) Employee does not participate in any director, officer, consulting or similar role relating to such Competitor, without violating the provisions of Section 10(b)(i), provided that neither Employee nor any of Employee’s affiliates has the power, directly or indirectly, to control or direct the management or affairs of any such entity and is not involved in the management of its subsidiariessuch entity.
c. For purposes (e) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 410, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(f) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(g) The following terms shall have the following meanings:
Appears in 1 contract
Samples: Employment Agreement (Select Energy Services, Inc.)
Non-Competition; Non-Solicitation. a. In granting (a) The Company will provide Employee access to Confidential Information for use only during the Restricted Stock Unit Award to the ParticipantEmployment Period, and Employee agrees that the Company provides Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the Participant a further goodwill of the Company Group, and in consideration of the Company providing Employee with access to Confidential Information and as an express incentive to build the Company’s goodwill and links the Participant’s interests to the Company’s long-term business interests. As an inducement for the Company to grant the Restricted Stock Unit Award and enter into this AgreementAgreement and employ Employee, and in order to protect the Confidential Information, and the Company’s and its subsidiaries goodwill, the Participant Employee has voluntarily agrees agreed to the covenants set forth in this Section 4(a)10. The Participant Employee agrees and acknowledges that the limitations and restrictions set forth hereinin this Agreement, including the geographical and temporal restrictions on certain competitive activities, are reasonable in all respects and reasonable, will not oppressive cause Employee undue hardship, and are material and substantial part parts of the Company’s willingness to enter into this Agreement, and are Agreement intended and necessary to prevent unfair competition and to protect the CompanyCompany Group’s and its subsidiaries’ Confidential Information, goodwill, and substantial and legitimate business interests.
b. The Participant agrees that during (b) During the Prohibited Period, the Participant Employee shall not, without the prior written approval of the CompanyBoard, directly or indirectly, for the Participant, Employee or on behalf of or in conjunction with any other person or entity of whatever any nature:
i. (i) engage in or carry on participate within the Market Area in competition with any member of the Company or any of its subsidiaries Group in any aspect of the Business, which prohibition shall prevent the Participant prevents Employee from directly or indirectly: indirectly (A) owning, managing, operating, becoming operating or being an officer or director of any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company or Group in any of its subsidiaries, or capacity (B) in the Market Area, joining, becoming employee or consultant of, or otherwise being affiliated with any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries (in each case, with respect to regarding this clause (B), in any capacity ) in which the ParticipantEmployee’s duties or responsibilities are the same as or similar to those performed for the duties or responsibilities that Employee had on behalf of any member of the Company or any of its subsidiaries) – for purposes of this provision, “primarily engage” means that at least twenty percent (20%) of the gross revenue of a person or entity’s business is from business directly competitive with the BusinessGroup;
(ii. ) appropriate any Business Opportunity of, or relating to, any member of the Company or any of its subsidiaries located Group in the Market Area;
(iii. within the Market Area, ) solicit, canvass, approach, encourage, entice entice, or induce any customer or supplier of any member of the Company or any of its subsidiaries with whom or which the Participant had contact in the last 24 months of his or her employment with the Company or its subsidiaries or about whom or which the Participant obtained Confidential Information Group to cease stop or lessen such that customer’s or supplier’s business with any member of the Company or any of its subsidiaries in the BusinessGroup; or
(iv. ) solicit, canvass, approach, encourage, entice entice, or induce any employee or contractor of any member of the Company or any of its subsidiaries Group to terminate his, her her, or its employment or engagement therewith, excluding general advertisements and solicitations not targeted at the employees or contractors with any member of the Company or its subsidiariesGroup.
v. Notwithstanding the above-referenced limitations in Sections 4(b)(i), 4(b)(ii(c) and 4(b)(iii), such limitations shall not apply following the termination Because of the Participant’s employment with difficulty of measuring economic losses to the Company Group because of a breach or threatened breach of the covenants 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 (as applicable) any of its subsidiaries in those portions of the Market Area located within the State of Oklahoma. Instead, the Participant agrees that, during the portion of the Prohibited Period that occurs after the Participant is no longer employed by the Company or any of its subsidiaries, the restrictions on the Participant’s activities within those portions of the Market Area located within the State of Oklahoma (in addition to those restrictions set forth in Sections 1 and 4(b)(iv) herein) shall be as follows: the Participant will not directly or indirectly solicit the sale of goods, services, or a combination of goods and services from the established customers each other member of the Company Group may enforce the foregoing covenants, if a breach occurs 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 equitable relief will not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead will be besides all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(d) The covenants in this Section 10, and each provision and portion, are severable and separate, and the unenforceability of any specific covenant (or portion of its subsidiariesit) will affect no other covenant (or portion of it). If a court of competent jurisdiction decides that the scope, time, or territorial restrictions in this Agreement are unreasonable, then it is the intention of the parties those restrictions be enforced as the arbitrator or court deems reasonable, and this Agreement will be reformed.
c. For purposes of this Section 4, the following (e) These terms shall will have the following these meanings:
Appears in 1 contract
Samples: Employment Agreement (Unit Corp)
Non-Competition; Non-Solicitation. a. In granting (a) The Company shall provide Employee access to Confidential Information for use only during the Restricted Stock Unit Award to the ParticipantEmployment Period, and Employee acknowledges and agrees that the Company provides Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the Participant goodwill of the Company Group, and as a further condition of the Company providing Employee with access to Confidential Information and as an express incentive to build the Company’s goodwill and links the Participant’s interests to the Company’s long-term business interests. As an inducement for the Company to grant the Restricted Stock Unit Award and enter into this AgreementAgreement and employ Employee, and in order to protect the Confidential Information, and the Company’s and its subsidiaries goodwill, the Participant Employee has voluntarily agrees agreed to the covenants set forth in this Section 4(a)10. The Participant Employee is a member of the Company’s executive or management personnel, and Employee expressly agrees and acknowledges that Employee is receiving new and valuable consideration following Employee’s entry into this Agreement, and the limitations and restrictions set forth herein, including the geographical and temporal restrictions on certain competitive activities, are reasonable in all respects and respects, will not oppressive cause Employee undue hardship, and are material and substantial part parts of the Company’s willingness to enter into this Agreement, and are Agreement intended and necessary to prevent unfair competition and to protect the CompanyCompany Group’s and its subsidiaries’ Confidential Information, goodwill, and substantial goodwill and legitimate business interests.
b. The Participant agrees that during (b) During the Prohibited Period, the Participant Employee shall not, without the prior written approval of the CompanyBoard, directly or indirectly, for the Participant, Employee or on behalf of or in conjunction with any other person or entity of whatever any nature:
i. (i) engage in or carry on participate within the Market Area in competition with any member of the Company or any of its subsidiaries Group in any aspect of the Business, which prohibition shall prevent the Participant Employee from directly or indirectly: (A) owning, managing, operating, becoming or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company or Group in any of its subsidiaries, or capacity (B) in the Market Area, joining, becoming employee or consultant of, or otherwise being affiliated with any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries (in each case, with respect to this clause (B), in any capacity ) in which the ParticipantEmployee’s duties or responsibilities are the same as or similar to those performed for the duties or responsibilities that Employee had on behalf of any member of the Company or any of its subsidiaries) – for purposes of this provision, “primarily engage” means that at least twenty percent (20%) of the gross revenue of a person or entity’s business is from business directly competitive with the BusinessGroup;
(ii. ) appropriate any Business Opportunity of, or relating to, any member of the Company or any of its subsidiaries Group located in the Market Area;
(iii. within the Market Area, ) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company or any of its subsidiaries with whom or which the Participant had contact in the last 24 months of his or her employment with the Company or its subsidiaries or about whom or which the Participant obtained Confidential Information Group to cease or lessen such customer’s or supplier’s business with any member of the Company or any of its subsidiaries in the BusinessGroup; or
(iv. ) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company or any of its subsidiaries Group to terminate his, her or its employment or engagement therewith, excluding general advertisements and solicitations not targeted at the employees or contractors with any member of the Company or its subsidiariesGroup.
v. (c) Notwithstanding the foregoing,
(i) following the date that Employee is no longer employed by any member of the Company Group, the above-referenced limitations in Sections 4(b)(i10(b)(i), 4(b)(ii(ii) and 4(b)(iii), such limitations (iii) shall not apply following the termination of the Participant’s employment with the Company and (as applicable) any of its subsidiaries in those portions of the Market Area located within the State of Oklahoma. Instead, the Participant Employee agrees that, during the that portion of the Prohibited Period that occurs after begins following the Participant date that Employee is no longer employed by any member of the Company or any of its subsidiariesGroup, the restrictions on the ParticipantEmployee’s activities within those portions of the Market Area located within the State of Oklahoma (in addition to those restrictions set forth in Sections 1 9 and 4(b)(iv10(b)(iv) hereinabove) shall be as follows: the Participant Employee will not directly or indirectly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company or any other member of the Company Group.
(ii) The passive beneficial ownership by Employee of less than or equal to two percent of the outstanding publicly traded equity securities of any business that competes with any member of its subsidiariesthe Company Group in the Market Area shall not be a breach of this Agreement; and
(iii) The owning or leasing of property or equipment utilized in connection with the Business in the Market Area as set forth on Exhibit C will not be deemed to be a breach of this Agreement.
c. For purposes (d) 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 410, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(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 restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(f) The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation. a. In granting (a) The Company shall provide Employee access to Confidential Information for use only during the Restricted Stock Unit Award to the ParticipantEmployment Period, and Employee acknowledges and agrees that the Company provides Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the Participant a further goodwill of the Company Group, and in consideration of the Company providing Employee with access to Confidential Information and as an express incentive to build the Company’s goodwill and links the Participant’s interests to the Company’s long-term business interests. As an inducement for the Company to grant the Restricted Stock Unit Award and enter into this AgreementAgreement and employ Employee hereunder, and in order to protect the Confidential Information, and the Company’s and its subsidiaries goodwill, the Participant Employee has voluntarily agrees agreed to the covenants set forth in this Section 4(a)10. The Participant Employee agrees and acknowledges that the limitations and restrictions set forth herein, including the geographical and temporal restrictions on certain competitive activities, are reasonable in all respects and respects, do not oppressive interfere with public interests, will not cause Employee undue hardship, and are material and substantial part parts of the Company’s willingness to enter into this Agreement, and are Agreement intended and necessary to prevent unfair competition and to protect the CompanyCompany Group’s and its subsidiaries’ Confidential Information, goodwill, and substantial goodwill and legitimate business interests.
b. The Participant agrees that during (b) During the Prohibited PeriodPeriod (as defined below), the Participant Employee shall not, without the prior written approval of the CompanyBoard, directly or indirectly, for the Participant, Employee or on behalf of or in conjunction with any other person or entity of whatever any nature:
i. (i) engage in or carry on within the Market Area in competition with the Company or any of its subsidiaries in any aspect of the Businessparticipate, which prohibition shall prevent the Participant from directly or indirectly, in the following conduct: (A) owning, managing, operating, becoming or being an officer or director of, any business that competes with any member of the Company Group in the Market Area (as defined below) related to the Business (as defined below) (except for the ownership of up to 3.0% of the shares of common stock or securities or any entity whose common shares or securities are listed on a national securities exchange), or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company or Group in any of its subsidiaries, or capacity (B) in the Market Area, joining, becoming employee or consultant of, or otherwise being affiliated with any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries (in each case, with respect to this clause (B), in any capacity ) in which the ParticipantEmployee’s duties or responsibilities are the same as or similar to those performed for the duties or responsibilities that Employee had on behalf of any member of the Company or any of its subsidiaries) – for purposes of this provision, “primarily engage” means that at least twenty percent (20%) of the gross revenue of a person or entity’s business is from business directly competitive with the BusinessGroup;
(ii. appropriate any Business Opportunity of, or relating to, the Company or any of its subsidiaries located in the Market Area;
iii. within the Market Area, ) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company or any of its subsidiaries Group with whom or which the Participant Employee had personal contact in the last 24 months course of his or her employment with performing Employee’s duties for any member of the Company or its subsidiaries or about whom or which the Participant obtained Confidential Information Group to cease or lessen such customer’s or supplier’s business with any member of the Company or any of its subsidiaries in the BusinessGroup; or
iv. (iii) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company or any of its subsidiaries Group to terminate or reduce his, her or its employment or engagement therewith, excluding general advertisements and solicitations not targeted at the employees or contractors with any member of the Company Group. This provision shall not prohibit Employee from employing or its subsidiariesmaking an offer of employment to an employee or contractor of any member of the Company Group if such employment and/or offer resulted from a general solicitation or advertisement for applications in a newspaper, trade publication, on the Internet or other public forum.
v. Notwithstanding (c) Because of the above-referenced limitations difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Sections 4(b)(i)Section 9 and in this Section 10, 4(b)(ii) and 4(b)(iii)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, such limitations the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not apply following be the termination Company’s or any other member of the ParticipantCompany Group’s employment 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.
2 (i) If Employee violates his/her obligations during the Prohibited Period and the Company (or relevant member of the Company Group) brings legal action for injunctive or other relief under Sections 9 and/or 10, the applicable Restricted Period shall be tolled by such court of competent jurisdiction so that the Company Group shall not be deprived of the benefit of the full Prohibited Period.
3 (ii) During the Prohibited Period, Executive expressly agrees to notify any prospective employer or affiliate in the restricted Business and Market Area of his/her obligations during the Prohibited Period and authorizes the Company to make contact with, any person or affiliate reasonably believed by the Company Group to be engaged or about to be engaged in an act that would constitute a violation of Employee’s obligations under this Agreement. Employee hereby waives, and releases the Company Group from, any claims whatsoever arising in connection with the Company Group’s contact or discussions with such person or affiliate.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (as applicableor portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any court of its subsidiaries in those portions of competent jurisdiction shall determine that the Market Area located within the State of Oklahoma. Insteadscope, the Participant agrees that, during the portion of the Prohibited Period that occurs after the Participant is no longer employed by the Company time or any of its subsidiaries, the restrictions on the Participant’s activities within those portions of the Market Area located within the State of Oklahoma (in addition to those territorial restrictions set forth in Sections 1 and 4(b)(iv) herein) shall be as follows: are unreasonable, then it is the Participant will not directly or indirectly solicit the sale of goods, services, or a combination of goods and services from the established customers intention of the Company or of any of its subsidiariesparties that such restrictions be enforced to the fullest extent which such court deems reasonable, and this Agreement shall thereby be reformed and enforced as so reformed.
c. For purposes of this Section 4, the (e) The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation. a. In granting (a) The Company shall provide Employee access to Confidential Information for use only during the Restricted Stock Unit Award to the ParticipantEmployment Period, and Employee acknowledges and agrees that the Company provides Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the Participant a further goodwill of the Company Group, and in consideration of the Company providing Employee with access to Confidential Information, clients and customers and as an express incentive to build the Company’s goodwill and links the Participant’s interests to the Company’s long-term business interests. As an inducement for the Company to grant the Restricted Stock Unit Award and enter into this AgreementAgreement and employ Employee, and in order to protect the Confidential Information, and the Company’s and its subsidiaries goodwill, the Participant Employee has voluntarily agrees agreed to the covenants set forth in this Section 4(a)10. The Participant Employee agrees and acknowledges that the limitations and restrictions set forth herein, including the geographical and temporal restrictions on certain competitive activities, are reasonable in all respects and respects, do not oppressive interfere with public interests, will not cause Employee undue hardship, and are material and substantial part parts of the Company’s willingness to enter into this Agreement, and are Agreement intended and necessary to prevent unfair competition and to protect the CompanyCompany Group’s and its subsidiaries’ Confidential Information, goodwill, and substantial goodwill and legitimate business interests.
b. The Participant agrees that during (b) During the Prohibited Period, the Participant Employee shall not, without the prior written approval of the CompanyBoard, directly or indirectly, for the Participant, Employee or on behalf of or in conjunction with any other person or entity of whatever any nature:
i. (i) engage in or carry on participate in (or prepare to engage in or participate in) the Business within the Market Area in competition with the Company or any of its subsidiaries in any aspect of the BusinessArea, which prohibition shall prevent the Participant Employee from directly or indirectly: (A) owning, investing in, controlling, managing, operating, becoming participating in, lending Employee’s name to, contributing to, providing assistance to or being an officer or director of of, any person or entity primarily 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 primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries, or capacity (B) in the Market Area, joining, becoming employee or consultant of, or otherwise being affiliated with any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries (in each case, with respect to this clause (B), in any capacity ) in which the ParticipantEmployee’s customer or client relationships, duties or responsibilities are the same as or similar to those performed for the customer or client relationships, duties or responsibilities that Employee had on behalf of any member of the Company or any of its subsidiaries) – for purposes of this provision, “primarily engage” means that at least twenty percent (20%) of the gross revenue of a person or entity’s business is from business directly competitive with the BusinessGroup;
(ii. ) appropriate or interfere with or attempt to appropriate or interfere with any Business Opportunity of, or relating to, any member of the Company or any of its subsidiaries Group located in the Market Area;
(iii. within the Market Area, ) solicit, canvass, approach, encourage, entice or induce any customer customer, vendor or supplier of any member of the Company or any of its subsidiaries Group with whom or which the Participant Employee had contact in the last 24 months of his (including oversight responsibility) or her learned Confidential Information about during Employee’s employment with any member of the Company or its subsidiaries or about whom or which the Participant obtained Confidential Information 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 its subsidiaries in the Businessforegoing; or
(iv. ) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company or any of its subsidiaries Group to terminate his, her or its employment or engagement therewith, excluding general advertisements and solicitations not targeted at the employees or contractors with any member of the Company Group, or its subsidiaries.
v. hire or retain any such employee or contractor. Notwithstanding the above-referenced limitations in Sections 4(b)(i)foregoing, 4(b)(ii) and 4(b)(iii), such limitations nothing herein shall not apply following limit Employee’s ability to accept employment and perform work with any person or entity where (x) the termination of the Participant’s employment with the Company services provided by Employee to such person or entity are not, and (as applicable) any of its subsidiaries in those portions of the Market Area located within the State of Oklahoma. Instead, the Participant agrees that, during the portion of the Prohibited Period that occurs after the Participant is no longer employed by the Company or any of its subsidiaries, the restrictions on the Participant’s activities within those portions of the Market Area located within the State of Oklahoma (in addition to those restrictions set forth in Sections 1 and 4(b)(iv) herein) shall be as follows: the Participant will do not directly or indirectly solicit benefit any division or business of such person or entity that is, in competition with the sale of goods, services, Business or any other material business in which a combination of goods and services from the established customers member of the Company Group has made a significant financial investment on or prior to the date of termination to be engaged in on or after such date and (y) Employee 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 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. Employee further agrees that Employee will not challenge the reasonableness or enforceability of any of its subsidiaries.
c. For purposes the covenants set forth in this Section 10, and that Employee will reimburse the Company Group for all costs (including reasonable attorneys’ fees) incurred in connection with any action to enforce any of the provisions of this Section 410 if Employee challenges the reasonableness or enforceability of any of the provisions of this Section 10.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation. a. In granting (a) The Company shall provide Employee access to Confidential Information for use only during the Restricted Stock Unit Award to the ParticipantEmployment Period, and Employee acknowledges and agrees that the Company provides Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the Participant goodwill of the Company Group, and as a further condition of the Company providing Employee with access to Confidential Information and as an express incentive to build the Company’s goodwill and links the Participant’s interests to the Company’s long-term business interests. As an inducement for the Company to grant the Restricted Stock Unit Award and enter into this AgreementAgreement and employ Employee, and in order to protect the Confidential Information, and the Company’s and its subsidiaries goodwill, the Participant Employee has voluntarily agrees agreed to the covenants set forth in this Section 4(a)10. The Participant Employee is a member of the Company’s executive or management personnel, and Employee expressly agrees and acknowledges that Employee is receiving new and valuable consideration following Employee’s entry into this Agreement, and the limitations and restrictions set forth herein, including the geographical and temporal restrictions on certain competitive activities, are reasonable in all respects and respects, will not oppressive cause Employee undue hardship, and are material and substantial part parts of the Company’s willingness to enter into this Agreement, and are Agreement intended and necessary to prevent unfair competition and to protect the CompanyCompany Group’s and its subsidiaries’ Confidential Information, goodwill, and substantial goodwill and legitimate business interests.
b. The Participant agrees that during (b) During the Prohibited Period, the Participant Employee shall not, without the prior written approval of the CompanyBoard, directly or indirectly, for the Participant, Employee or on behalf of or in conjunction with any other person or entity of whatever any nature:
i. (i) engage in or carry on participate within the Market Area in competition with any member of the Company or any of its subsidiaries Group in any aspect of the Business, which prohibition shall prevent the Participant Employee from directly or indirectly: (A) owning, managing, operating, becoming or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company or Group in any of its subsidiaries, or capacity (B) in the Market Area, joining, becoming employee or consultant of, or otherwise being affiliated with any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries (in each case, with respect to this clause (B), in any capacity ) in which the ParticipantEmployee’s duties or responsibilities are the same as or similar to those performed for the duties or responsibilities that Employee had on behalf of any member of the Company or any of its subsidiaries) – for purposes of this provision, “primarily engage” means that at least twenty percent (20%) of the gross revenue of a person or entity’s business is from business directly competitive with the BusinessGroup;
(ii. ) appropriate any Business Opportunity of, or relating to, any member of the Company or any of its subsidiaries Group located in the Market Area;
(iii. within the Market Area, ) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company or any of its subsidiaries with whom or which the Participant had contact in the last 24 months of his or her employment with the Company or its subsidiaries or about whom or which the Participant obtained Confidential Information Group to cease or lessen such customer’s or supplier’s business with any member of the Company or any of its subsidiaries in the BusinessGroup; or
(iv. ) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company or any of its subsidiaries Group to terminate his, her or its employment or engagement therewith, excluding general advertisements and solicitations not targeted at the employees or contractors with any member of the Company or its subsidiariesGroup.
v. (c) Notwithstanding the foregoing,
(i) following the date that Employee is no longer employed by any member of the Company Group, the above-referenced limitations in Sections 4(b)(i10(b)(i), 4(b)(ii(ii) and 4(b)(iii), such limitations (iii) shall not apply following the termination of the Participant’s employment with the Company and (as applicable) any of its subsidiaries in those portions of the Market Area located within the State of Oklahoma. Instead, the Participant Employee agrees that, during the that portion of the Prohibited Period that occurs after begins following the Participant date that Employee is no longer employed by any member of the Company or any of its subsidiariesGroup, the restrictions on the ParticipantEmployee’s activities within those portions of the Market Area located within the State of Oklahoma (in addition to those restrictions set forth in Sections 1 9 and 4(b)(iv10(b)(iv) hereinabove) shall be as follows: the Participant Employee will not directly or indirectly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company or any other member of the Company Group.
(ii) The passive beneficial ownership by Employee of less than or equal to two percent of the outstanding publicly traded equity securities of any business that competes with any member of its subsidiariesthe Company Group in the Market Area shall not be a breach of this Agreement.
c. For purposes (d) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(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 restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(f) Nothing in this Section 10 shall be interpreted or applied in a manner to prevent or restrict Employee from practicing law, as it is the intent of this Section 410 to create certain limitations on Employee’s business activities only, and not to create limitations that would restrict Employee from practicing law. For the avoidance of doubt, and without limiting the foregoing, nothing in this Section 10 shall prohibit Employee from engaging in the private practice of law as a sole practitioner or member of a law firm, irrespective of whether members of a law firm with whom he is affiliated or he, in such capacity, represents businesses that are engaged in Business as defined in Section 10(g)(i) below. Employee acknowledges and agrees that, both before and after the Termination Date, Employee shall be bound by all ethical and professional obligations (including those with respect to conflicts and confidentiality) that arise from Employee’s provision of legal services to, and acting as legal counsel for, the Company and, as applicable, the other members of the Company Group.
(g) The following terms shall have the following meanings:
Appears in 1 contract
Samples: Employment Agreement (Hi-Crush Inc.)
Non-Competition; Non-Solicitation. a. In granting (a) The Company Group shall provide Executive access to Confidential Information for use only during the Restricted Stock Unit Award to the ParticipantEmployment Period, and Executive acknowledges and agrees that the Company provides Group will be entrusting Executive, in Executive’s unique and special capacity, with developing the Participant a further goodwill of the Company Group, and in consideration thereof and in consideration of the Company Group providing Executive with access to Confidential Information and as an express incentive to build the Company’s goodwill and links the Participant’s interests to the Company’s long-term business interests. As an inducement for the Company to grant the Restricted Stock Unit Award and enter into this Agreement, and in order to protect the Confidential Information, and the Company’s and its subsidiaries goodwill, the Participant Executive has voluntarily agrees agreed to the covenants set forth in this Section 4(a)11. The Participant Executive further agrees and acknowledges that the limitations and restrictions set forth herein, including the geographical and temporal restrictions on certain competitive activities, are reasonable in all respects and not oppressive oppressive, will not cause Executive undue hardship, and are material and substantial part parts of the Company’s willingness to enter into this Agreement, and are Agreement intended and necessary to prevent unfair competition and to protect the CompanyCompany Group’s and its subsidiaries’ Confidential Information, goodwill, and substantial and legitimate business interests.
b. The Participant (b) Executive agrees that that, during the Prohibited PeriodPeriod (as defined below), the Participant Executive shall not, without the prior written approval of the Company, directly or indirectly, for the Participant, Executive or on behalf of or in conjunction with any other person or entity of whatever nature:
i. (i) engage in or carry on participate within the Market Area (as defined below) in competition with any member of the Company or any of its subsidiaries Group in any aspect of the BusinessBusiness (as defined below), which such prohibition shall prevent the Participant Executive from directly or indirectly: (A) indirectly owning, managing, operating, becoming an officer or director of any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries, or (B) in the Market Area, joining, becoming an officer, director, employee or consultant of, or loaning money to or selling or leasing equipment or real estate to or otherwise being affiliated with any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, in the Market Area, with any member of the Company or any of its subsidiaries (in each case, with respect to this clause (B), in any capacity in which the Participant’s duties are the same or similar to those performed for the Company or any of its subsidiaries) – for purposes of this provision, “primarily engage” means that at least twenty percent (20%) of the gross revenue of a person or entity’s business is from business directly competitive with the BusinessGroup;
(ii. ) appropriate any Business Opportunity (as defined below) of, or relating to, the Company or any of its subsidiaries Group located in the Market Area;
(iii. within the Market Area, ) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company or any of its subsidiaries with whom or which the Participant had contact in the last 24 months of his or her employment with the Company or its subsidiaries or about whom or which the Participant obtained Confidential Information Group to cease or lessen such customer’s or supplier’s business with the Company Group. This paragraph is geographically limited to where a customer, supplier, or any member is present and available for solicitation at that time. Executive may not avoid the purpose and intent of its subsidiaries this paragraph by engaging in conduct within the Businessgeographically limited area from a remote location through means such as telecommunications, written correspondence, computer generated or assisted communications, or other similar methods; or
(iv. ) solicit, canvass, approach, encourage, entice or induce any employee or contractor of the Company or any of its subsidiaries Group to terminate his, her or its employment or engagement therewith, excluding general advertisements and solicitations not targeted at the employees or contractors of the Company or its subsidiaries.
v. Notwithstanding (c) Executive agrees that the above-referenced limitations in Sections 4(b)(i), 4(b)(iicovenants of Section 11(b) shall be enforceable during the Employment Period and 4(b)(iii), such limitations shall not apply for a period of 12 months following the termination of the Participant’s employment with Employment Period (the “Prohibited Period”), regardless of the reason for such termination. The Prohibited Period shall be extended by any period of time during which Executive is in breach of any of the covenants of Section 11(b). Notwithstanding any provision to the contrary, it will not be a violation of this Section 11 for Executive to acquire and own an equity interest representing less than 5% of the total voting power of all classes of equity interests in a publicly traded entity.
(d) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach of the foregoing covenants, and because of the immediate and irreparable damage that would be caused to the Company Group for which it would have no other adequate remedy, Executive agrees that in the event of breach or threatened breach by Executive of any provision of Section 10 or 11 hereof, Company shall be entitled to (i) injunctive relief by temporary restraining order, temporary injunction, and/or permanent injunction, (ii) recovery of all attorneys’ fees and costs incurred by Company in obtaining such relief, and (as applicableiii) any other legal and equitable relief to which Company may be entitled, including without limitation any and all monetary damages which Company may incur as a result of its subsidiaries said breach or threatened breach. An agreed amount for the bond to be posted if an injunction is sought by Company is One Thousand Dollars ($1,000.00). Company may pursue any remedy available, including declaratory relief, concurrently or consecutively in those portions any order as to any breach, violation, or threatened breach or violation, and the pursuit of one such remedy at any time will not be deemed an election of remedies or waiver of the Market Area located within right to pursue any other remedy.
(e) The covenants in this Section 11 are severable and separate, and the State unenforceability of Oklahomaany specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). InsteadMoreover, in the Participant agrees thatevent any arbitrator or court of competent jurisdiction shall determine that the scope, during the portion of the Prohibited Period that occurs after the Participant is no longer employed by the Company time or any of its subsidiaries, the restrictions on the Participant’s activities within those portions of the Market Area located within the State of Oklahoma (in addition to those territorial restrictions set forth in Sections 1 and 4(b)(iv) herein) shall be as follows: the Participant will not directly or indirectly solicit the sale of goods, servicesare unreasonable, or for any other reason unenforceable, then it is the intention of the parties that such arbitrator or court of competent jurisdiction is authorized and directed to reform such provisions to the minimum extent necessary to cause the limitations contained in this Section 11 as to time, geographical area, and scope of activity to be reasonable and to impose a combination of goods restraint that is not greater than necessary to protect the goodwill and services from the established customers legitimate business interests of the Company or of any of its subsidiariesGroup.
c. (f) For purposes of this Section 411, the following terms shall have the following meanings:
Appears in 1 contract
Samples: Employment Agreement (Calumet Specialty Products Partners, L.P.)
Non-Competition; Non-Solicitation. a. In granting (a) The Company shall provide Employee access to Confidential Information for use only during the Restricted Stock Unit Award to the ParticipantEmployment Period, and Employee acknowledges and agrees that the Company provides Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the Participant a further goodwill of the Company Group, and in consideration of the Company providing Employee with access to Confidential Information, clients and customers and as an express incentive to build the Company’s goodwill and links the Participant’s interests to the Company’s long-term business interests. As an inducement for the Company to grant the Restricted Stock Unit Award and enter into this AgreementAgreement and employ Employee, and in order to protect the Confidential Information, and the Company’s and its subsidiaries goodwill, the Participant Employee has voluntarily agrees agreed to the covenants set forth in this Section 4(a)10. The Participant Employee agrees and acknowledges that the limitations and restrictions set forth herein, including the geographical and temporal restrictions on certain competitive activities, are reasonable in all respects and respects, do not oppressive interfere with public interests, will not cause Employee undue hardship, and are material and substantial part parts of the Company’s willingness to enter into this Agreement, and are Agreement intended and necessary to prevent unfair competition and to protect the CompanyCompany Group’s and its subsidiaries’ Confidential Information, goodwill, and substantial goodwill and legitimate business interests.
b. The Participant agrees that during (b) During the Prohibited Period, the Participant Employee shall not, without the prior written approval of the CompanyBoard, directly or indirectly, for the Participant, Employee or on behalf of or in conjunction with any other person or entity of whatever any nature:
i. (i) engage in or carry on participate in (or prepare to engage in or participate in) the Business within the Market Area in competition with the Company or any of its subsidiaries in any aspect of the BusinessArea, which prohibition shall prevent the Participant Employee from directly or indirectly: (A) owning, investing in, controlling, managing, operating, becoming participating in, lending Employee’s name to, contributing to, providing assistance to or being an officer or director of of, any person or entity primarily 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 primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries, or capacity (B) in the Market Area, joining, becoming employee or consultant of, or otherwise being affiliated with any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries (in each case, with respect to this clause (B), in any capacity ) in which the ParticipantEmployee’s customer or client relationships, duties or responsibilities are the same as or similar to those performed for the customer or client relationships, duties or responsibilities that Employee had on behalf of any member of the Company or any of its subsidiaries) – for purposes of this provision, “primarily engage” means that at least twenty percent (20%) of the gross revenue of a person or entity’s business is from business directly competitive with the BusinessGroup;
(ii. ) appropriate or interfere with or attempt to appropriate or interfere with any Business Opportunity of, or relating to, any member of the Company or any of its subsidiaries Group located in the Market Area;;
(iii. within the Market Area, ) solicit, canvass, approach, encourage, entice or induce any customer customer, vendor or supplier of any member of the Company or any of its subsidiaries Group with whom or which the Participant Employee had contact in the last 24 months of his (including oversight responsibility) or her learned Confidential Information about during Employee’s employment with any member of the Company or its subsidiaries or about whom or which the Participant obtained Confidential Information 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 its subsidiaries in the Businessforegoing; or
(iv. ) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company or any of its subsidiaries Group to terminate his, her or its employment or engagement therewith, excluding general advertisements and solicitations not targeted at the employees or contractors with any member of the Company Group, or its subsidiaries.
v. hire or retain any such employee or contractor. Notwithstanding the above-referenced limitations in Sections 4(b)(i)foregoing, 4(b)(ii) and 4(b)(iii), such limitations nothing herein shall not apply following limit Employee’s ability to accept employment and perform work with any person or entity where (x) the termination of the Participant’s employment with the Company services provided by Employee to such person or entity are not, and (as applicable) any of its subsidiaries in those portions of the Market Area located within the State of Oklahoma. Instead, the Participant agrees that, during the portion of the Prohibited Period that occurs after the Participant is no longer employed by the Company or any of its subsidiaries, the restrictions on the Participant’s activities within those portions of the Market Area located within the State of Oklahoma (in addition to those restrictions set forth in Sections 1 and 4(b)(iv) herein) shall be as follows: the Participant will do not directly or indirectly solicit benefit any division or business of such person or entity that is, in competition with the sale of goods, services, Business or any other material business in which a combination of goods and services from the established customers member of the Company Group has made a significant financial investment on or prior to the date of termination to be engaged in on or after such date and (y) Employee 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 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. Employee further agrees that Employee will not challenge the reasonableness or enforceability of any of its subsidiaries.
c. For purposes the covenants set forth in this Section 10, and that Employee will reimburse the Company Group for all costs (including reasonable attorneys’ fees) incurred in connection with any action to enforce any of the provisions of this Section 410 if Employee challenges the reasonableness or enforceability of any of the provisions of this Section 10.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation. a. In granting (a) The Company shall provide Employee access to Confidential Information for use only during the Restricted Stock Unit Award to the ParticipantEmployment Period, and Employee acknowledges and agrees that the Company provides Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the Participant a further goodwill of the Company Group, and in consideration of the Company providing Employee with access to Confidential Information, clients and customers and as an express incentive to build the Company’s goodwill and links the Participant’s interests to the Company’s long-term business interests. As an inducement for the Company to grant the Restricted Stock Unit Award and enter into this AgreementAgreement and employ Employee, and in order to protect the Confidential Information, and the Company’s and its subsidiaries goodwill, the Participant Employee has voluntarily agrees agreed to the covenants set forth in this Section 4(a)10. The Participant Employee agrees and acknowledges that the limitations and restrictions set forth herein, including the geographical and temporal restrictions on certain competitive activities, are reasonable in all respects and respects, do not oppressive interfere with public interests, will not cause Employee undue hardship, and are material and substantial part parts of the Company’s willingness to enter into this Agreement, and are Agreement intended and necessary to prevent unfair competition and to protect the CompanyCompany Group’s and its subsidiaries’ Confidential Information, goodwill, and substantial goodwill and legitimate business interests.
b. The Participant agrees that during (b) During the Prohibited PeriodPeriod (as defined below), the Participant Employee shall not, without the prior written approval of the CompanyBoard, directly or indirectly, for the Participant, Employee or on behalf of or in conjunction with any other person or entity of whatever any nature:
i. (i) engage in or carry on participate in (or prepare to engage in or participate in) the Business within the Market Area in competition with the Company or any of its subsidiaries in any aspect of the BusinessArea, which prohibition shall prevent the Participant Employee from directly or indirectly: (A) owning, investing in, controlling, managing, operating, becoming participating in, lending Employee’s name to, contributing to, providing assistance to or being an officer or director of of, any person or entity primarily 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 primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries, or capacity (B) in the Market Area, joining, becoming employee or consultant of, or otherwise being affiliated with any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries (in each case, with respect to this clause (B), in any capacity ) in which the ParticipantEmployee’s customer or client relationships, duties or responsibilities are the same as or similar to those performed for the customer or client relationships, duties or responsibilities that Employee had on behalf of any member of the Company or any of its subsidiaries) – for purposes of this provision, “primarily engage” means that at least twenty percent (20%) of the gross revenue of a person or entity’s business is from business directly competitive with the BusinessGroup;
(ii. ) appropriate or interfere with or attempt to appropriate or interfere with any Business Opportunity of, or relating to, any member of the Company or any of its subsidiaries Group located in the Market Area;
(iii. within the Market Area, ) solicit, canvass, approach, encourage, entice or induce any customer customer, vendor or supplier of any member of the Company or any of its subsidiaries Group with whom or which the Participant Employee had contact in the last 24 months of his (including oversight responsibility) or her learned Confidential Information about during Employee’s employment with any member of the Company or its subsidiaries or about whom or which the Participant obtained Confidential Information 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 its subsidiaries in the Businessforegoing; or
(iv. ) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company or any of its subsidiaries Group to terminate his, her or its employment or engagement therewith, excluding general advertisements and solicitations not targeted at the employees or contractors with any member of the Company Group, or its subsidiaries.
v. hire or retain any such employee or contractor or take any action to materially assist or aid any other person, firm, corporation or other entity in identifying, hiring or soliciting any such employee or contractor. An employee or contractor shall be deemed covered by this Section while so employed or retained and for a period of six (6) months thereafter. Notwithstanding the above-referenced limitations in Sections 4(b)(i)foregoing, 4(b)(iinothing herein shall limit Employee’s ability to accept employment and perform work with any person or entity where (x) the services provided by Employee to such person or entity are not, and 4(b)(iii), such limitations shall not apply following the termination of the Participant’s employment with the Company and (as applicable) any of its subsidiaries in those portions of the Market Area located within the State of Oklahoma. Instead, the Participant agrees that, during the portion of the Prohibited Period that occurs after the Participant is no longer employed by the Company or any of its subsidiaries, the restrictions on the Participant’s activities within those portions of the Market Area located within the State of Oklahoma (in addition to those restrictions set forth in Sections 1 and 4(b)(iv) herein) shall be as follows: the Participant will do not directly or indirectly solicit benefit any division or business of such person or entity that is, in competition with the sale of goods, services, Business or any other material business in which a combination of goods and services from the established customers member of the Company Group has made a significant financial investment on or prior to the date of termination to be engaged in on or after such date and (y) Employee does not own more than 2% 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 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. Employee further agrees that Employee will not challenge the reasonableness or enforceability of any of its subsidiaries.
c. For purposes the covenants set forth in this Section 10, and that Employee will reimburse the Company Group for all costs (including reasonable attorneys’ fees) incurred in connection with any action to enforce any of the provisions of this Section 410 if Employee challenges the reasonableness or enforceability of any of the provisions of this Section 10.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed. To the extent any dispute arising under this Section 10 is subject to the laws of the State of California, any provisions set forth herein that would be deemed unenforceable after giving effect to such laws will not apply.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation. a. In granting (a) The Company shall provide Employee access to Confidential Information for use only during the Restricted Stock Unit Award to the ParticipantEmployment Period, and Employee acknowledges and agrees that the Company provides Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the Participant a further goodwill of the Company Group, and in consideration of the Company providing Employee with access to Confidential Information, clients and customers and as an express incentive to build the Company’s goodwill and links the Participant’s interests to the Company’s long-term business interests. As an inducement for the Company to grant the Restricted Stock Unit Award and enter into this AgreementAgreement and employ Employee, and in order to protect the Confidential Information, and the Company’s and its subsidiaries goodwill, the Participant Employee has voluntarily agrees agreed to the covenants set forth in this Section 4(a)10. The Participant Employee agrees and acknowledges that the limitations and restrictions set forth herein, including the geographical and temporal restrictions on certain competitive activities, are reasonable in all respects and respects, do not oppressive interfere with public interests, will not cause Employee undue hardship, and are material and substantial part parts of the Company’s willingness to enter into this Agreement, and are Agreement intended and necessary to prevent unfair competition and to protect the CompanyCompany Group’s and its subsidiaries’ Confidential Information, goodwill, and substantial goodwill and legitimate business interests.
b. The Participant agrees that during (b) During the Prohibited Period, the Participant Employee shall not, without the prior written approval of the CompanyBoard, directly or indirectly, for the Participant, Employee or on behalf of or in conjunction with any other person or entity of whatever any nature:
i. (i) engage in or carry on participate in (or prepare to engage in or participate in) the Business within the Market Area in competition with the Company or any of its subsidiaries in any aspect of the BusinessArea, which prohibition shall prevent the Participant Employee from directly or indirectly: (A) owning, investing in, controlling, managing, operating, becoming participating in, lending Employee’s name to, contributing to, providing assistance to or being an officer or director of of, any person or entity primarily 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 primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries, or capacity (B) in the Market Area, joining, becoming employee or consultant of, or otherwise being affiliated with any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries (in each case, with respect to this clause (B), in any capacity ) in which the ParticipantEmployee’s customer or client relationships, duties or responsibilities are the same as or similar to those performed for the customer or client relationships, duties or responsibilities that Employee had on behalf of any member of the Company or any of its subsidiaries) – for purposes of this provision, “primarily engage” means that at least twenty percent (20%) of the gross revenue of a person or entity’s business is from business directly competitive with the BusinessGroup;
(ii. ) appropriate or interfere with or attempt to appropriate or interfere with any Business Opportunity of, or relating to, any member of the Company or any of its subsidiaries Group located in the Market Area;;
(iii. within the Market Area, ) solicit, canvass, approach, encourage, entice or induce any customer customer, vendor or supplier of any member of the Company or any of its subsidiaries Group with whom or which the Participant Employee had contact in the last 24 months of his (including oversight responsibility) or her learned Confidential Information about during Employee’s employment with any member of the Company or its subsidiaries or about whom or which the Participant obtained Confidential Information 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 its subsidiaries in the Businessforegoing; or
(iv. ) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company or any of its subsidiaries Group to terminate his, her or its employment or engagement therewith, excluding general advertisements and solicitations not targeted at the employees or contractors with any member of the Company Group, or its subsidiaries.
v. hire or retain any such employee or contractor. Notwithstanding the above-referenced limitations in Sections 4(b)(i)foregoing, 4(b)(ii) and 4(b)(iii), such limitations nothing herein shall not apply following limit Employee’s ability to accept employment and perform work with any person or entity where (x) the termination of the Participant’s employment with the Company services provided by Employee to such person or entity are not, and (as applicable) any of its subsidiaries in those portions of the Market Area located within the State of Oklahoma. Instead, the Participant agrees that, during the portion of the Prohibited Period that occurs after the Participant is no longer employed by the Company or any of its subsidiaries, the restrictions on the Participant’s activities within those portions of the Market Area located within the State of Oklahoma (in addition to those restrictions set forth in Sections 1 and 4(b)(iv) herein) shall be as follows: the Participant will do not directly or indirectly solicit benefit any division or business of such person or entity that is, in competition with the sale of goods, services, Business or any other material business in which a combination of goods and services from the established customers member of the Company Group has made a significant financial investment on or prior to the date of termination to be engaged in on or after such date and (y) Employee 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 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. Employee further agrees that Employee will not challenge the reasonableness or enforceability of any of its subsidiaries.
c. For purposes the covenants set forth in this Section 10, and that Employee will reimburse the Company Group for all costs (including reasonable attorneys’ fees) incurred in connection with any action to enforce any of the provisions of this Section 410 if Employee challenges the reasonableness or enforceability of any of the provisions of this Section 10.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meanings:
Appears in 1 contract
Non-Competition; Non-Solicitation. a. In (a) The Company has provided and shall, during the Employment Period, continue to provide Employee access to Confidential Information for use only during the Employment Period, and Employee acknowledges and agrees that the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill of the Company Group, and in consideration of the Company providing Employee with access to Confidential Information, in further consideration of Parent granting restricted shares to Employee pursuant to the Restricted Stock Unit Award to the ParticipantAgreement, the Company provides the Participant a further and as an express incentive to build the Company’s goodwill and links the Participant’s interests to the Company’s long-term business interests. As an inducement for the Company to grant the Restricted Stock Unit Award and enter into this AgreementAgreement and employ Employee hereunder, and in order to protect the Confidential Information, and the Company’s and its subsidiaries goodwill, the Participant Employee has voluntarily agrees agreed to the covenants set forth in this Section 4(a)10. The Participant Employee agrees and acknowledges that the limitations and restrictions set forth herein, including the geographical and temporal restrictions on certain competitive activities, are reasonable in all respects and respects, will not oppressive cause Employee undue hardship, and are material and substantial part parts of the Company’s willingness to enter into this Agreement, and are Agreement intended and necessary to prevent unfair competition and to protect the CompanyCompany Group’s and its subsidiaries’ Confidential Information, goodwill, and substantial goodwill and legitimate business interests.
b. The Participant agrees that during (b) During the Prohibited Period, the Participant Employee shall not, without the prior written approval of the CompanyBoard, directly or indirectly, for the Participant, Employee or on behalf of or in conjunction with any other person or entity of whatever any nature:
i. (i) engage in or carry on participate within the Market Area in competition with any member of the Company or any of its subsidiaries Group in any aspect of the Business, which prohibition shall prevent the Participant Employee from directly or indirectly: (A) owning, managing, operating, becoming or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company or Group in any of its subsidiaries, or capacity (B) in the Market Area, joining, becoming employee or consultant of, or otherwise being affiliated with any person or entity primarily engaged in, or planning to primarily engage in, the Business in the Market Area in competition, or anticipated competition, with the Company or any of its subsidiaries (in each case, with respect to this clause (B), in any capacity ) in which the ParticipantEmployee’s duties or responsibilities are the same as or similar to those performed for the duties or responsibilities that Employee had on behalf of any member of the Company or any of its subsidiaries) – for purposes of this provision, “primarily engage” means that at least twenty percent (20%) of the gross revenue of a person or entity’s business is from business directly competitive with the BusinessGroup;
(ii. ) appropriate any Business Opportunity of, or relating to, any member of the Company or any of its subsidiaries Group located in the Market Area;
(iii. within the Market Area, ) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company or any of its subsidiaries with whom or which the Participant had contact in the last 24 months of his or her employment with the Company or its subsidiaries or about whom or which the Participant obtained Confidential Information Group to cease or lessen such customer’s or supplier’s business with any member of the Company or any of its subsidiaries in the BusinessGroup; or
(iv. ) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company or any of its subsidiaries Group to terminate his, her or its employment or engagement therewith, excluding general advertisements and solicitations not targeted at the employees or contractors with any member of the Company or its subsidiariesGroup.
v. (c) Notwithstanding the foregoing, following the Termination Date, the above-referenced limitations in Sections 4(b)(i10(b)(i), 4(b)(ii(ii) and 4(b)(iii), such limitations (iii) shall not apply following the termination of the Participant’s employment with the Company and (as applicable) any of its subsidiaries in those portions of the Market Area located within the State of Oklahoma. Instead, the Participant Employee agrees that, during following the portion of the Prohibited Period that occurs after the Participant is no longer employed by the Company or any of its subsidiariesTermination Date, the restrictions on the ParticipantEmployee’s activities within those portions of the Market Area located within the State of Oklahoma (in addition to those restrictions set forth in Sections 1 and 4(b)(ivSection 10(b)(iv) hereinabove) shall be as follows: during that portion of the Participant Prohibited Period that follows the Termination Date, Employee will not directly or indirectly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company or any other member of the Company Group. Further, Employee will not be deemed to be engaging in the Business in violation of Section 10(b)(i)(B) by virtue of performing duties similar to those performed for a member of the Company Group in the course of employment with an entity whose primary business is as an operator in the oil and gas exploration and production industry (an “Operator”), so long as such Operator only performs the services that constitute the Business for its own operations, and such Operator does not perform such services for customers.
(d) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(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 its subsidiariesany other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
c. For purposes of this Section 4, the (f) The following terms shall have the following meanings:
Appears in 1 contract
Samples: Employment Agreement (Select Energy Services, Inc.)
