Noncompete, Non-Solicitation. (a) In further consideration of the compensation to be paid to Executive hereunder, Executive acknowledges that in the course of Executive's employment with the Company and any applicable Affiliate thereof, Executive will during the Employment Period become familiar with the trade secrets, business plans and business strategies and with other Confidential Information (as defined on the Appendix hereto) concerning the Company and any applicable Affiliate of the Company (and their respective predecessors, successors and assigns) and that Executive's services have been and shall be of special, unique and extraordinary value to the Company and any applicable Affiliate of the Company. Therefore, Executive agrees that, during the Employment Period and for one (1) year thereafter (such period, the "Noncompete Period"), Executive shall not directly or indirectly (whether for Executive or for any other Person) (A) operate, manage, control, engage in, participate in (whether as an officer, director, employee, partner, agent, representative or otherwise), permit Executive's name to be used by, consult with, advise, render services for (alone or in association with any other Person), or otherwise assist in any manner (collectively, to "Participate" in) or (B) own any interest in, lend to or invest in, (i) International Data Group, Inc., CMP Media, Inc. (a subsidiary of United News & Media PLC); or CNET Networks, Inc.; (ii) any Person which, to Executive's knowledge, International Data Group, Inc., CMP Media, Inc. (a subsidiary of United News & Media PLC) or CNET Networks, Inc. owns an interest in, lends or otherwise provides financial support to, manages, controls or is party to one or more agreements that are singly or in the aggregate are material to either party thereto; (iii) any successor, assignee, partner, joint venturer, subsidiary, division or Affiliate of any of the Persons referenced in clause (i) or (ii) of this sentence; (iv) any Person that engages in, operates, manages or controls any venture or enterprise which directly or indirectly engages in the Specified Line(s) of Business; or (v) any successor, assignee, partner, joint venturer, subsidiary, division or Affiliate of any of the Persons referenced in clause (iv) of this sentence. (b) Notwithstanding the foregoing, (i) Executive may Participate in any business of any entity listed in clause (iv) or clause (v) of Section 5(a) to the extent such business is not directly related to the Specified Line(s) of Business and (ii) for purposes of Section 5(a), Executive shall not be considered to "own any interest in, lend to or invest in" any corporation with respect to which (x) Executive owns, indirectly through a mutual fund or other similar pooled investment vehicle, a passive investment in the publicly-traded stock of such corporation. Also notwithstanding the foregoing, or (y) Executive owns (either as shareholder of record or as beneficial owner) publicly-traded stock of such corporation, provided that the Specified Line(s) of Business are not material to such corporation's financial condition or results of operations. Without limiting the foregoing and for avoidance of doubt, (A) it would constitute a breach of Section 5(a) if Executive during the Noncompete Period performs services (whether in a sales or management or other capacity) for America Online, Inc., Yahoo! Inc., The Microsoft Network L.L.C. or eBay Inc. or their respective affiliates, which services are primarily related to the creation or display of content focused on technology news, products or services or the sale of advertising or subscriptions related to such content and (B) it would not constitute a breach of Section 5(a) if Executive during the Noncompete Period performs other services for America Online, Inc., Yahoo! Inc., The Microsoft Network L.L.C. or eBay Inc. or their respective affiliates. (c) During the Employment Period and for one (1) year thereafter, Executive shall not directly or indirectly through another Person (i) induce or attempt to induce any employee of the Company or any Affiliate of the Company to leave the employ of the Company or such Affiliate, or in any way interfere with the relationship between the Company or any Affiliate of the Company and any employee thereof, (ii) hire any person who was an employee of the Company or any Affiliate of the Company at any time during the one (1) year period prior to the termination of the Employment Period, (iii) call on, solicit or service any licensee, licensor, customer, supplier, franchisee or other business relation of the Company or any Affiliate of the Company (each a "Company Business Relation") in order to induce or attempt to induce such Company Business Relation to cease or reduce doing business with the Company or such Affiliate, or in any way interfere with the relationship between any such Company Business Relation and the Company or any Affiliate of the Company, (iv) make any negative statements or communications about the Company or any of its Affiliates or their respective directors, officers, employees, agents, products or services, or compare the Company or any of its Affiliates or their respective directors, officers, employees, agents, products or services to any third party or the directors, officers, employees, agents, products or services of any third party, or (v) directly or indirectly acquire or attempt to acquire any business in the United States of America to which the Company or any of its Affiliates has made an acquisition proposal prior to the Termination Date relating to the possible acquisition of such business (an "Acquisition Target") by the Company or any of its Affiliates, or take any action to induce or attempt to induce any Acquisition Target to consummate any acquisition, investment or other similar transaction with any Person other than the Company or any of the Company's Affiliates. (d) Notwithstanding anything in Section 5(c)(iii) to the contrary, it shall not be deemed a violation of Section 5(c)(iii) for Executive to call on or solicit business from any existing customer or supplier of the Company, so long as Executive is not performing duties or services prohibited by Section 5(a) or violating clauses (i), (ii), (iv) or (v) of Section 5(c). By way of illustration, and without limiting the generality of the foregoing (i) it would constitute a breach of the Agreement if Executive during the Noncompete Period solicits business from Dell Computer Corporation or its affiliates (collectively, "Dell") while Executive is employed as the Vice President of Technology Sales for Yahoo! Inc. or as the General Manager of Sales for AOL Technology and (ii) it would not constitute a breach of the Agreement if Executive solicits business from Dell while Executive is employed as Vice President of Sales for Yahoo! Inc. or as the Publisher of Time Magazine, provided that (x) Executive did not violate clauses (i), (ii), (iv) or (v) of Section 5(c) and (y) at the time Executive solicited the business from Dell, the business of Yahoo! Inc. or Time Magazine, as the case may be, was not primarily related to the creation or display of content focused on technology news, products or services or the sale of advertising or subscriptions related to such content. (e) If, at the time of enforcement of Section 5 of this Agreement, a court shall hold that the duration, scope, or area restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum period, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law. Because Executive's services are unique and because Executive has access to Confidential Information and Work Product (as defined on the Appendix hereto), the parties hereto agree that money damages would not be an adequate remedy for any breach of this Agreement. Therefore, in the event of a breach or threatened breach of this Agreement, the Company or its successors or assigns may, in addition to other rights and remedies existing in their favor, apply to any court of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce, or prevent any violations of, the provisions hereof (without posting bond or other security). In addition, in the event of a breach or violation by Executive of Section 5 hereof, the period set forth in such Section shall be tolled until such breach or violation has been duly cured. Executive agrees that the restrictions contained in Section 5 are reasonable and that Executive has received consideration in exchange therefor. (f) As used herein, "Specified Line(s) of Business" shall mean any business that is primarily related to the creation or display of content focused on technology news, products or services or the sale of advertising or subscriptions related to such content. Without limiting the foregoing and for avoidance of doubt, (i) as of the Effective Date the Company's Specified Line(s) of Business specifically excludes the Company's operations to the extent related to content focused on electronic gaming news, products or services and (ii) the parties expressly acknowledge and agree that in the event the Company acquires or develops any operations after the Effective Date for which Executive becomes responsible and which are not directly related to the Specified Line(s) of Business ("Other Line(s) of Business'), (x) Executive may from and after the Termination Date compete with the Company in the Other Line(s) of Business in accordance with Section 5(b)(i) and (y) to the extent that Executive's Base Salary and/or Bonus reflect compensation related to the Other Line(s) of Business (i.e., to the extent such Base Salary and Bonus is higher than it would have been had Executive not had responsibility for operations related to such Other Line(s) of Business), such portion of Executive's Base Salary and Bonus shall be excluded from the calculation of amounts payable pursuant to Section 4(d). The parties may, but shall not be under any obligation to, agree to amend the definition of Specified Line(s) of Business in the future.
Appears in 1 contract
Noncompete, Non-Solicitation. (a) In further consideration of the compensation to be paid to Executive hereunder, Executive acknowledges that in the course of Executive's employment with the Company and any applicable Affiliate thereof, Executive will during the Employment Period become familiar with the trade secrets, business plans and business strategies and with other Confidential Information (as defined on the Appendix hereto) concerning the Company and any applicable Affiliate of the Company (and their respective predecessors, successors and assigns) and that Executive's services have been and shall be of special, unique and extraordinary value to the Company and any applicable Affiliate of the Company. Therefore, Executive agrees that, during the Employment Period and for one (1) year thereafter (such period, the "Noncompete Period"), Executive shall not directly or indirectly (whether for Executive or for any other Person) (A) own any interest in, operate, manage, control, engage in, participate in (whether as an officer, director, employee, partner, agent, representative or otherwise), invest in, permit Executive's name to be used by, consult with, advise, render services for (alone or in association with any other Person), or otherwise assist in any manner (collectively, to "Participate" in) or (B) own any interest in, lend to or invest in, (i) International Data Group, Inc., CMP Media, Inc. (a subsidiary of United News & Media PLC); or CNET Networks, Inc.; (ii) any Person which, to Executive's knowledge, International Data Group, Inc., CMP Media, Inc. (each a subsidiary of United News & Media PLC"Restricted Person") or CNET Networks, Inc. owns an interest in, lends or otherwise provides financial support to, manages, controls or is party to one or more agreements that are singly or in the aggregate are material to either party thereto; (iii) any successor, assignee, partner, joint venturer, subsidiary, division or Affiliate of any of the Persons referenced in clause (i) or (ii) of this sentence; (iv) any Person that engages in or owns, invests in, operates, manages or controls any venture or enterprise which directly or indirectly engages or proposes to engage in any business or enterprise which manufactures, designs, produces, renders or sells products or services which compete with the products and services of the Company (or any products or services the Company is in the Specified Line(s) process of Businessdeveloping), as the Company's and its Affiliates businesses exist at the Termination Date or are in process as of the Termination Date; or (vii) any successor, assignee, partner, joint venturerventure or collaboration partner, subsidiary, division or Affiliate of any Restricted Person; or (iii) any Person in which any Restricted Person owns an interest or participates, which any of the Persons referenced in clause Restricted Person manages or controls (iv) of this sentence.
(b) Notwithstanding the foregoingwhether as an officer, (i) Executive may Participate in any business of any entity listed in clause (iv) director, employee, partner, agent, representative or clause (v) of Section 5(a) to the extent such business is not directly related to the Specified Line(s) of Business and (ii) for purposes of Section 5(aotherwise), Executive shall not be considered to "own or with which any interest in, lend to Restricted Person consults or invest in" any corporation with respect to which (x) any Restricted Person otherwise provides management or financial support. Nothing herein shall prohibit Executive ownsfrom being an owner, indirectly through a mutual fund or other similar pooled investment vehicle, of a passive investment in the publicly-traded stock of a corporation which is publicly traded, so long as Executive has no other participation in the business of any such corporation. Also notwithstanding the foregoing, or (y) Executive owns (either as shareholder of record or as beneficial owner) publicly-traded stock of such corporation, provided that the Specified Line(s) of Business are not material to such corporation's financial condition or results of operations. Without limiting the foregoing generality of the foregoing, Executive and for avoidance the Company agree that as of doubtthe Effective Date, the following persons are each deemed to be a "Restricted Person": International Data Group, Inc.; CMP Media, Inc. (A) it would constitute a breach subsidiary of United Business Media PLC); The Future Network Plc; and CNET Networks, Inc. The Company and Executive expressly acknowledge and agree that each and every restriction imposed by this Section 5(a) if Executive during the Noncompete Period performs services (whether in a sales or management or other capacity) for America Onlineis reasonable with respect to subject matter, Inc., Yahoo! Inc., The Microsoft Network L.L.C. or eBay Inc. or their respective affiliates, which services are primarily related to the creation or display of content focused on technology news, products or services or the sale of advertising or subscriptions related to such content time period and (B) it would not constitute a breach of Section 5(a) if Executive during the Noncompete Period performs other services for America Online, Inc., Yahoo! Inc., The Microsoft Network L.L.C. or eBay Inc. or their respective affiliatesgeographical area.
(cb) During the Employment Period and for one (1) year thereafter, Executive shall not directly or indirectly through another Person (i) induce or attempt to induce any employee of the Company or any Affiliate of the Company to leave the employ of the Company or such Affiliate, or in any way interfere with the relationship between the Company or any Affiliate of the Company and any employee thereof, (ii) hire any person who was an employee of the Company or any Affiliate of the Company at any time during the one (1) year period prior to the termination of the Employment Period, (iii) call on, solicit or service any customer, supplier, licensee, licensor, customer, supplier, franchisee or other business relation of the Company or any Affiliate of the Company (each a "Company Business Relation") in order to induce or attempt to induce such Company Business Relation Person to cease or reduce doing business with the Company or such AffiliateAffiliate (for avoidance of doubt and without limiting the foregoing, it shall constitute a material violation of this Section 5(b) for Executive to make any effort to cause any customer, supplier, licensee, licensor, franchisee or other business relation of the Company to purchase from a third party any goods or services that are offered at such time by the Company), or in any way interfere with the relationship between any such Company Business Relation customer, supplier, licensee or business relation and the Company or any Affiliate of the Company, (iv) make including, without limitation, making any negative statements or communications about the Company or any of its Affiliates or their respective directors, officers, employees, agents, products or services, or compare the Company or any of its Affiliates or their respective directors, officers, employees, agents, products or services to any third party or the directors, officers, employees, agents, products or services of any third partyAffiliates, or (viv) directly or indirectly acquire or attempt to acquire any business in the United States of America to which the Company or any of its Affiliates has made an acquisition proposal prior to the Termination Date relating to the possible acquisition of such business (an "Acquisition Target") by the Company or any of its Affiliates, or take any action to induce or attempt to induce any Acquisition Target to consummate any acquisition, investment or other similar transaction with any Person other than the Company or any of the Company's Affiliates.
(d) Notwithstanding anything in Section 5(c)(iii) to the contrary, it shall not be deemed a violation of Section 5(c)(iii) for Executive to call on or solicit business from any existing customer or supplier of the Company, so long as Executive is not performing duties or services prohibited by Section 5(a) or violating clauses (i), (ii), (iv) or (v) of Section 5(c). By way of illustration, and without limiting the generality of the foregoing (i) it would constitute a breach of the Agreement if Executive during the Noncompete Period solicits business from Dell Computer Corporation or its affiliates (collectively, "Dell") while Executive is employed as the Vice President of Technology Sales for Yahoo! Inc. or as the General Manager of Sales for AOL Technology and (ii) it would not constitute a breach of the Agreement if Executive solicits business from Dell while Executive is employed as Vice President of Sales for Yahoo! Inc. or as the Publisher of Time Magazine, provided that (x) Executive did not violate clauses (i), (ii), (iv) or (v) of Section 5(c) and (y) at the time Executive solicited the business from Dell, the business of Yahoo! Inc. or Time Magazine, as the case may be, was not primarily related to the creation or display of content focused on technology news, products or services or the sale of advertising or subscriptions related to such content.
(ec) If, at the time of enforcement of Section 5 of this Agreement, a court shall hold that the duration, scope, or area restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum period, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law. Because Executive's services are unique and because Executive has access to Confidential Information and Work Product (as defined on the Appendix hereto), the parties hereto agree that money damages would not be an adequate remedy for any breach of this Agreement. Therefore, in the event of a breach or threatened breach of this Agreement, the Company or its successors or assigns may, in addition to other rights and remedies existing in their favor, apply to any court of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce, or prevent any violations of, the provisions hereof (without posting a bond or other security). In addition, in the event of a an alleged breach or violation by Executive of Section 5 hereof5, the period set forth in such Section 5 shall be tolled until such breach or violation has been duly cured. Executive agrees that the restrictions contained in Section 5 are reasonable and that Executive has received consideration in exchange therefor.
(f) As used herein, "Specified Line(s) of Business" shall mean any business that is primarily related to the creation or display of content focused on technology news, products or services or the sale of advertising or subscriptions related to such content. Without limiting the foregoing and for avoidance of doubt, (i) as of the Effective Date the Company's Specified Line(s) of Business specifically excludes the Company's operations to the extent related to content focused on electronic gaming news, products or services and (ii) the parties expressly acknowledge and agree that in the event the Company acquires or develops any operations after the Effective Date for which Executive becomes responsible and which are not directly related to the Specified Line(s) of Business ("Other Line(s) of Business'), (x) Executive may from and after the Termination Date compete with the Company in the Other Line(s) of Business in accordance with Section 5(b)(i) and (y) to the extent that Executive's Base Salary and/or Bonus reflect compensation related to the Other Line(s) of Business (i.e., to the extent such Base Salary and Bonus is higher than it would have been had Executive not had responsibility for operations related to such Other Line(s) of Business), such portion of Executive's Base Salary and Bonus shall be excluded from the calculation of amounts payable pursuant to Section 4(d). The parties may, but shall not be under any obligation to, agree to amend the definition of Specified Line(s) of Business in the future.
Appears in 1 contract
Noncompete, Non-Solicitation. (a) In further consideration of the compensation to be paid to Executive hereunder, Executive acknowledges that in the course of Executive's employment with the Company and any applicable Affiliate thereof, Executive will during the Employment Period become familiar with the trade secrets, business plans and business strategies and with other Confidential Information (as defined on the Appendix hereto) concerning the Company and any applicable Affiliate of the Company (and their respective predecessors, successors and assigns) and that Executive's services have been and shall be of special, unique and extraordinary value to the Company and any applicable Affiliate of the Company. Therefore, Executive agrees that, during the Employment Period and for one (1) year thereafter (such period, the "Noncompete Period"), Executive shall not directly or indirectly (whether for Executive or for any other Person) (A) operate, manage, control, engage in, participate in (whether as an officer, director, employee, partner, agent, representative or otherwise), permit Executive's name to be used by, consult with, advise, render services for (alone or in association with any other Person), or otherwise assist in any manner (collectively, to "Participate" or have "Participation" in) or (B) own any interest in, lend to or invest in, in (i) International Data Group, Inc., CMP Media, Inc. (a subsidiary of United News & Media PLC); , The Future Network PLC or CNET Networks, Inc., or any of their respective Affiliates; (ii) any Person which, known to Executive's knowledge, International Data Group, Inc., CMP Media, Inc. (Executive to be a subsidiary of United News & Media PLC) or CNET Networks, Inc. owns an interest in, lends or otherwise provides financial support to, manages, controls or is party to one or more agreements that are singly or in the aggregate are material to either party thereto; (iii) any successor, assignee, partner, joint venturer, subsidiary, division or Affiliate of any of the Persons referenced in clause (i) or (ii) of this sentence; (iviii) any Person that engages in, operates, manages or controls known by Executive to Participate in any venture business or enterprise which directly or indirectly engages in the Specified Line(s) of BusinessBusiness (as defined below); or (viv) any Person known to Executive to be a successor, assignee, partner, joint venturer, subsidiary, division or Affiliate of any of the Persons referenced in clause (iviii) of this sentence.
sentence (b) Notwithstanding the foregoing, (i) Executive may Participate Persons referenced in any business of any entity listed in clause (iv) or clause (v) of Section 5(a) this sentence shall be referred to the extent such business is not directly related to the Specified Line(s) of Business and (ii) for each individually as a "Restricted Person"). For purposes of Section 5(a), Executive shall not be considered to "own any interest in, lend to or invest in" any corporation with respect to which (x) Executive owns, indirectly through a mutual fund or other similar pooled investment vehicle, a passive investment in the publicly-traded stock of such corporation. Also notwithstanding the foregoing, corporation or (y) Executive owns (either as shareholder of record or as beneficial owner) publicly-traded stock of a corporation that constitutes less than 1% of the outstanding shares of such corporation, provided that the Specified Line(s(I) of Business are not material with respect to such corporation's financial condition or results of operations. Without limiting the foregoing and for avoidance of doubt, (A) it would constitute a breach of Section 5(a) if Executive during the Noncompete Period performs services (whether Persons referenced in a sales or management or other capacity) for America Online, Inc., Yahoo! Inc., The Microsoft Network L.L.C. or eBay Inc. or their respective affiliates, which services are primarily related to the creation or display of content focused on technology news, products or services or the sale of advertising or subscriptions related to such content and (B) it would not constitute a breach of Section 5(a) if Executive during the Noncompete Period performs other services for America Online, Inc., Yahoo! Inc., The Microsoft Network L.L.C. or eBay Inc. or their respective affiliates.
(c) During the Employment Period and for one (1) year thereafter, Executive shall not directly or indirectly through another Person clause (i) induce or attempt to induce any employee of the Company or any Affiliate of the Company to leave the employ of the Company or preceding sentence, Executive did not acquire such Affiliateinterest after October 1, or in any way interfere with the relationship between the Company or any Affiliate of the Company and any employee thereof2004, (iiII) hire any person who was an employee of the Company or any Affiliate of the Company at any time during the one (1) year period prior with respect to the termination of the Employment Period, (iii) call on, solicit or service any licensee, licensor, customer, supplier, franchisee or other business relation of the Company or any Affiliate of the Company (each a "Company Business Relation") Persons referenced in order to induce or attempt to induce such Company Business Relation to cease or reduce doing business with the Company or such Affiliate, or in any way interfere with the relationship between any such Company Business Relation and the Company or any Affiliate of the Company, (iv) make any negative statements or communications about the Company or any of its Affiliates or their respective directors, officers, employees, agents, products or services, or compare the Company or any of its Affiliates or their respective directors, officers, employees, agents, products or services to any third party or the directors, officers, employees, agents, products or services of any third party, or (v) directly or indirectly acquire or attempt to acquire any business in the United States of America to which the Company or any of its Affiliates has made an acquisition proposal prior to the Termination Date relating to the possible acquisition of such business (an "Acquisition Target") by the Company or any of its Affiliates, or take any action to induce or attempt to induce any Acquisition Target to consummate any acquisition, investment or other similar transaction with any Person other than the Company or any of the Company's Affiliates.
(d) Notwithstanding anything in Section 5(c)(iii) to the contrary, it shall not be deemed a violation of Section 5(c)(iii) for Executive to call on or solicit business from any existing customer or supplier of the Company, so long as Executive is not performing duties or services prohibited by Section 5(a) or violating clauses (i), (ii), (iviii) or (viv) of the preceding sentence, Executive did not acquire such interest after the date Executive obtained knowledge of facts that would result in such Person being deemed to be a Restricted Person and (III) the fair market value of the stock held by Executive in any such corporation does not comprise more than two percent (2%) of Executive's net worth. Notwithstanding the foregoing, Executive may Participate in any business of any entity listed in clauses (iii) or (iv) of Section 5(c). By way of illustration, and without limiting the generality of the foregoing (i5(a) it would constitute a breach of the Agreement if Executive during the Noncompete Period solicits business from Dell Computer Corporation or its affiliates (collectively, "Dell") while Executive is employed as the Vice President of Technology Sales for Yahoo! Inc. or as the General Manager of Sales for AOL Technology and (ii) it would not constitute a breach of the Agreement if Executive solicits business from Dell while Executive is employed as Vice President of Sales for Yahoo! Inc. or as the Publisher of Time Magazine, provided that (x) Executive did not violate clauses (i), (ii), (iv) or (v) of Section 5(c) and (y) at the time Executive solicited the business from Dell, the business of Yahoo! Inc. or Time Magazine, as the case may be, was not primarily related to the creation or display of content focused on technology news, products or services or the sale of advertising or subscriptions related to such content.
(e) If, at the time of enforcement of Section 5 of this Agreement, a court shall hold that the duration, scope, or area restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum period, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law. Because Executive's services are unique and because Executive has access to Confidential Information and Work Product (as defined on the Appendix hereto), the parties hereto agree that money damages would not be an adequate remedy for any breach of this Agreement. Therefore, in the event of a breach or threatened breach of this Agreement, the Company or its successors or assigns may, in addition to other rights and remedies existing in their favor, apply to any court of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce, or prevent any violations of, the provisions hereof (without posting bond or other security). In addition, in the event of a breach or violation by Executive of Section 5 hereof, the period set forth in such Section shall be tolled until such breach or violation has been duly cured. Executive agrees that the restrictions contained in Section 5 are reasonable and that Executive has received consideration in exchange therefor.
(f) As used herein, "Specified Line(s) of Business" shall mean any business that is primarily related to the creation or display of content focused on technology news, products or services or the sale of advertising or subscriptions related to such content. Without limiting the foregoing and for avoidance of doubt, (i) as of the Effective Date the Company's Specified Line(s) of Business specifically excludes the Company's operations to the extent related to content focused on electronic gaming news, products or services and (ii) the parties expressly acknowledge and agree that in the event the Company acquires or develops any operations after the Effective Date for which Executive becomes responsible and which are his Participation is not directly related to the Specified Line(s) of Business ("Other Line(s) of Business'), (x) Executive may from and after the Termination Date compete with the Company in the Other Line(s) of Business in accordance with Section 5(b)(i) and (y) to the extent that Executive's Base Salary and/or Bonus reflect compensation related to the Other Line(s) of Business (i.e., to the extent such Base Salary and Bonus is higher than it would have been had Executive not had responsibility for operations related to such Other Line(s) of Business), such portion of Executive's Base Salary and Bonus shall be excluded from the calculation of amounts payable pursuant to Section 4(d). The parties may, but shall not be under any obligation to, agree to amend the definition of Specified Line(s) of Business in the future.
Appears in 1 contract
Noncompete, Non-Solicitation. (a) In further consideration of the compensation to be paid to Executive hereunder, Executive acknowledges that in the course of Executive's employment with the Company and any applicable Affiliate thereof, Executive will during the Employment Period become familiar with the trade secrets, business plans and business strategies and with other Confidential Information (as defined on the Appendix hereto) concerning the Company and any applicable Affiliate of the Company (and their respective predecessors, successors and assigns) and that Executive's services have been and shall be of special, unique and extraordinary value to the Company and any applicable Affiliate of the Company. Therefore, Executive agrees that, during the Employment Period and for one (1) year thereafter (such period, the "Noncompete Period"), Executive shall not directly or indirectly (whether for Executive or for any other Person) (A) own any interest in, operate, manage, control, engage in, participate in (whether as an officer, director, employee, partner, agent, representative or otherwise), invest in, permit Executive's name to be used by, consult with, advise, render services for (alone or in association with any other Person), or otherwise assist in any manner (collectively, to "Participate" in) or (B) own any interest in, lend to or invest in, (i) International Data Group, Inc., CMP Media, Inc. (a subsidiary of United News & Media PLC); or CNET Networks, Inc.; (ii) any Person which, to Executive's knowledge, International Data Group, Inc., CMP Media, Inc. (each a subsidiary of United News & Media PLC"Restricted Person") or CNET Networks, Inc. owns an interest in, lends or otherwise provides financial support to, manages, controls or is party to one or more agreements that are singly or in the aggregate are material to either party thereto; (iii) any successor, assignee, partner, joint venturer, subsidiary, division or Affiliate of any of the Persons referenced in clause (i) or (ii) of this sentence; (iv) any Person that engages in or owns, invests in, operates, manages or controls any venture or enterprise which directly or indirectly engages or proposes to engage in any business or enterprise which manufactures, designs, produces, renders or sells products or services which compete with the products and services of the Company (or any products or services the Company is in the Specified Line(s) process of developing), as the Company's and its Affiliates businesses exist at the Termination Date or are in process as of the Termination Date (the "Company's Business"); or (vii) any successor, assignee, partner, joint venturerventure or collaboration partner, subsidiary, division or Affiliate of any Restricted Person; or (iii) any Person in which any Restricted Person owns an interest or participates, which any of the Persons referenced in clause Restricted Person manages or controls (iv) of this sentence.
(b) whether as an officer, director, employee, partner, agent, representative or otherwise), or with which any Restricted Person consults or to which any Restricted Person otherwise provides management or financial support. Notwithstanding the foregoing, (ix) Executive may Participate in any business of any entity listed in clause (iv) or clause (v) of Section 5(a) to the extent such business is not directly related to the Specified Line(s) of Business and (ii) for purposes of Section 5(a), Executive shall not be considered to "own any interest in, lend to or invest in" any corporation with respect to which (x) Executive ownsan owner, indirectly through a mutual fund or other similar pooled investment vehicle, of a passive investment in the publicly-traded stock of a corporation, provided that Executive does not Participate in any business of any such corporation. Also notwithstanding corporation which business competes with the foregoing, or Company's Business; (y) Executive owns may be an owner (either as shareholder of record or as beneficial owner) of publicly-traded stock of such corporation, a corporation ("Issuer") provided that the Specified Line(s) business of Issuer that competes with the Company's Business are is not material to such corporationIssuer's financial condition or results of operationsoperations and provided further that Executive does not Participate in any business of any such Issuer which business competes with the Company's Business. Without limiting the foregoing generality of the foregoing, Executive and for avoidance the Company agree that as of doubtthe Effective Date, (A) it would constitute the following persons are each deemed to be a breach of Section 5(a) if Executive during the Noncompete Period performs services (whether in a sales or management or other capacity) for America Online"Restricted Person": International Data Group, Inc.; CMP Media, Yahoo! Inc., Inc. (a subsidiary of United News & Media PLC); CNET Networks; and The Microsoft Future Network L.L.C. or eBay Inc. or their respective affiliates, which services are primarily related to the creation or display of content focused on technology news, products or services or the sale of advertising or subscriptions related to such content and (B) it would not constitute a breach of Section 5(a) if Executive during the Noncompete Period performs other services for America Online, Inc., Yahoo! Inc., The Microsoft Network L.L.C. or eBay Inc. or their respective affiliatesPLC.
(cb) During the Employment Period and for one (1) year thereafter, Executive shall not directly or indirectly through another Person (i) induce or attempt to induce any employee of the Company or any Affiliate of the Company to leave the employ of the Company or such Affiliate, or in any way interfere with the relationship between the Company or any Affiliate of the Company and any employee thereof, (ii) hire any person who was an employee of the Company or any Affiliate of the Company at any time during the one (1) year period prior to the termination of the Employment Period, (iii) call on, solicit or service any customer, supplier, licensee, licensor, customer, supplier, franchisee or other business relation of the Company or any Affiliate of the Company (each a "Company Business Relation") in order to induce for the specific purpose of inducing or attempt attempting to induce such Company Business Relation Person to cease or reduce doing business with the Company or such AffiliateAffiliate (for avoidance of doubt and without limiting the foregoing, it shall constitute a material violation of this Section 5(b) for Executive to make any effort to cause any customer, supplier, licensee, licensor, franchisee or other business relation of the Company to purchase from a third party any goods or services that are offered at such time by the Company), or in any way interfere with the relationship between any such Company Business Relation customer, supplier, licensee or business relation and the Company or any Affiliate of the Company, (iv) make including, without limitation, making any negative statements or communications about the Company or any of its Affiliates or their respective directors, officers, employees, agents, products or services, or compare the Company or any of its Affiliates or their respective directors, officers, employees, agents, products or services to any third party or the directors, officers, employees, agents, products or services of any third partyAffiliates, or (viv) directly or indirectly acquire or attempt to acquire any business in the United States of America to which the Company or any of its Affiliates has made an acquisition proposal prior to the Termination Date relating to the possible acquisition of such business (an "Acquisition Target") by the Company or any of its Affiliates, or take any action to induce or attempt to induce any Acquisition Target to consummate any acquisition, investment or other similar transaction with any Person other than the Company or any of the Company's Affiliates.
(d) Notwithstanding anything in Section 5(c)(iii) to the contrary, it shall not be deemed a violation of Section 5(c)(iii) for Executive to call on or solicit business from any existing customer or supplier of the Company, so long as Executive is not performing duties or services prohibited by Section 5(a) or violating clauses (i), (ii), (iv) or (v) of Section 5(c). By way of illustration, and without limiting the generality of the foregoing (i) it would constitute a breach of the Agreement if Executive during the Noncompete Period solicits business from Dell Computer Corporation or its affiliates (collectively, "Dell") while Executive is employed as the Vice President of Technology Sales for Yahoo! Inc. or as the General Manager of Sales for AOL Technology and (ii) it would not constitute a breach of the Agreement if Executive solicits business from Dell while Executive is employed as Vice President of Sales for Yahoo! Inc. or as the Publisher of Time Magazine, provided that (x) Executive did not violate clauses (i), (ii), (iv) or (v) of Section 5(c) and (y) at the time Executive solicited the business from Dell, the business of Yahoo! Inc. or Time Magazine, as the case may be, was not primarily related to the creation or display of content focused on technology news, products or services or the sale of advertising or subscriptions related to such content.
(ec) If, at the time of enforcement of Section 5 of this Agreement, a court shall hold that the duration, scope, or area restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum period, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law. Because Executive's services are unique and because Executive has access to Confidential Information and Work Product (as defined on the Appendix hereto), the parties hereto agree that money damages would not be an adequate remedy for any breach of this Agreement. Therefore, in the event of a breach or threatened breach of this Agreement, the Company or its successors or assigns may, in addition to other rights and remedies existing in their favor, apply to any court of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce, or prevent any violations of, the provisions hereof (without posting a bond or other security). In addition, in the event of a an alleged breach or violation by Executive of Section 5 hereof5, the period set forth in such Section shall be tolled until such breach or violation has been duly cured. Executive agrees that the restrictions contained in Section 5 are reasonable and that Executive has received consideration in exchange therefor.
(f) As used herein, "Specified Line(s) of Business" shall mean any business that is primarily related to the creation or display of content focused on technology news, products or services or the sale of advertising or subscriptions related to such content. Without limiting the foregoing and for avoidance of doubt, (i) as of the Effective Date the Company's Specified Line(s) of Business specifically excludes the Company's operations to the extent related to content focused on electronic gaming news, products or services and (ii) the parties expressly acknowledge and agree that in the event the Company acquires or develops any operations after the Effective Date for which Executive becomes responsible and which are not directly related to the Specified Line(s) of Business ("Other Line(s) of Business'), (x) Executive may from and after the Termination Date compete with the Company in the Other Line(s) of Business in accordance with Section 5(b)(i) and (y) to the extent that Executive's Base Salary and/or Bonus reflect compensation related to the Other Line(s) of Business (i.e., to the extent such Base Salary and Bonus is higher than it would have been had Executive not had responsibility for operations related to such Other Line(s) of Business), such portion of Executive's Base Salary and Bonus shall be excluded from the calculation of amounts payable pursuant to Section 4(d). The parties may, but shall not be under any obligation to, agree to amend the definition of Specified Line(s) of Business in the future.
Appears in 1 contract
Noncompete, Non-Solicitation. (a) In further consideration of the compensation to be paid to Executive hereunder, Executive acknowledges that in the course of Executive's employment with the Company and any applicable Affiliate thereof, Executive will during the Employment Period become familiar with the trade secrets, business plans and business strategies and with other Confidential Information (as defined on the Appendix hereto) concerning the Company and any applicable Affiliate of the Company (and their respective predecessors, successors and assigns) and that Executive's services have been and shall be of special, unique and extraordinary value to the Company and any applicable Affiliate of the Company. Therefore, Executive agrees that, during the Employment Period and for one (1) year thereafter (such period, the "Noncompete Period"), Executive shall not directly or indirectly (whether for Executive or for any other Person) (A) operate, manage, control, engage in, participate in (whether as an officer, director, employee, partner, agent, representative or otherwise), invest in, permit Executive's name to be used by, consult with, advise, render services for (alone or in association with any other Person), or otherwise assist in any manner (collectively, to "Participate" or have "Participation" in) or (B) own any interest in, lend to or invest in, in (i) International Data Group, Inc., CMP Media, Inc. (a subsidiary of United News & Media PLC); , The Future Network PLC or CNET Networks, Inc., or any of their respective Affiliates; (ii) any Person which, to Executive's knowledge, International Data Groupany one or more of the Persons referenced in clause (i) of this sentence Participates in, Inc., CMP Media, Inc. (a subsidiary of United News & Media PLC) or CNET Networks, Inc. owns an interest in, lends to or otherwise provides financial support to, manages, controls or is party to one or more agreements that are singly or in the aggregate are material to either party thereto; (iii) any Person known to Executive to be a successor, assignee, partner, joint venturer, subsidiary, division or Affiliate of any of the Persons referenced in clause (i) or (ii) of this sentence; (iv) any Person that engages in, operates, manages or controls known by Executive to Participate in any venture business or enterprise which directly or indirectly engages in the Specified Line(s) of BusinessBusiness (as defined below); or (v) any Person known to Executive to be a successor, assignee, partner, joint venturer, subsidiary, division or Affiliate of any of the Persons referenced in clause (iv) of this sentence.
sentence (b) the Persons referenced in this sentence shall be referred to each individually as a "Restricted Person"). Notwithstanding the foregoing, (i) Executive may Participate in any business of any entity listed in clause (iv) or clause (v) of Section 5(a) to the extent such business is not directly related to the Specified Line(s) of Business and (ii) for purposes of Section 5(a), Executive shall not be considered to "own any interest in, lend to or invest in" any corporation with respect to which (x) Executive owns, indirectly through a mutual fund or other similar pooled investment vehicle, a passive investment in the publicly-traded stock of such corporation. Also notwithstanding the foregoing, or (y) Executive owns (either as shareholder of record or as beneficial owner) publicly-traded stock of such corporation, provided that the Specified Line(s) of Business are not material to such corporation's financial condition or results of operations. Without limiting the foregoing and for avoidance of doubt, (A) it would constitute a breach of Section 5(a) if Executive during the Noncompete Period performs services (whether in a sales or management or other capacity) for America Online, Inc., Yahoo! Inc., The Microsoft Network L.L.C. or eBay Inc. or their respective affiliates, which services are primarily related to the creation or display of content focused on technology news, products or services or the sale of advertising or subscriptions related to such content and (B) it would not constitute a breach of Section 5(a) if Executive during the Noncompete Period performs other services for America Online, Inc., Yahoo! Inc., The Microsoft Network L.L.C. or eBay Inc. or their respective affiliates.
(c) During the Employment Period and for one (1) year thereafter, Executive shall not directly or indirectly through another Person (i) induce or attempt to induce any employee of the Company or any Affiliate of the Company to leave the employ of the Company or such Affiliate, or in any way interfere with the relationship between the Company or any Affiliate of the Company and any employee thereof, (ii) hire any person who was an employee of the Company or any Affiliate of the Company at any time during the one (1) year period prior to the termination of the Employment Period, (iii) call on, solicit or service any licensee, licensor, customer, supplier, franchisee or other business relation of the Company or any Affiliate of the Company (each a "Company Business Relation") in order to induce or attempt to induce such Company Business Relation to cease or reduce doing business with the Company or such Affiliate, or in any way interfere with the relationship between any such Company Business Relation and the Company or any Affiliate of the Company, (iv) make any negative statements or communications about the Company or any of its Affiliates or their respective directors, officers, employees, agents, products or services, or compare the Company or any of its Affiliates or their respective directors, officers, employees, agents, products or services to any third party or the directors, officers, employees, agents, products or services of any third party, or (v) directly or indirectly acquire or attempt to acquire any business in the United States of America to which the Company or any of its Affiliates has made an acquisition proposal prior to the Termination Date relating to the possible acquisition of such business (an "Acquisition Target") by the Company or any of its Affiliates, or take any action to induce or attempt to induce any Acquisition Target to consummate any acquisition, investment or other similar transaction with any Person other than the Company or any of the Company's Affiliates.
(d) Notwithstanding anything in Section 5(c)(iii) to the contrary, it shall not be deemed a violation of Section 5(c)(iii) for Executive to call on or solicit business from any existing customer or supplier of the Company, so long as Executive is not performing duties or services prohibited by Section 5(a) or violating clauses (i), (ii), (iv) or (v) of Section 5(c). By way of illustration, and without limiting the generality of the foregoing (i5(a) it would constitute a breach of the Agreement if Executive during the Noncompete Period solicits business from Dell Computer Corporation or its affiliates (collectively, "Dell") while Executive is employed as the Vice President of Technology Sales for Yahoo! Inc. or as the General Manager of Sales for AOL Technology and (ii) it would not constitute a breach of the Agreement if Executive solicits business from Dell while Executive is employed as Vice President of Sales for Yahoo! Inc. or as the Publisher of Time Magazine, provided that (x) Executive did not violate clauses (i), (ii), (iv) or (v) of Section 5(c) and (y) at the time Executive solicited the business from Dell, the business of Yahoo! Inc. or Time Magazine, as the case may be, was not primarily related to the creation or display of content focused on technology news, products or services or the sale of advertising or subscriptions related to such content.
(e) If, at the time of enforcement of Section 5 of this Agreement, a court shall hold that the duration, scope, or area restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum period, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law. Because Executive's services are unique and because Executive has access to Confidential Information and Work Product (as defined on the Appendix hereto), the parties hereto agree that money damages would not be an adequate remedy for any breach of this Agreement. Therefore, in the event of a breach or threatened breach of this Agreement, the Company or its successors or assigns may, in addition to other rights and remedies existing in their favor, apply to any court of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce, or prevent any violations of, the provisions hereof (without posting bond or other security). In addition, in the event of a breach or violation by Executive of Section 5 hereof, the period set forth in such Section shall be tolled until such breach or violation has been duly cured. Executive agrees that the restrictions contained in Section 5 are reasonable and that Executive has received consideration in exchange therefor.
(f) As used herein, "Specified Line(s) of Business" shall mean any business that is primarily related to the creation or display of content focused on technology news, products or services or the sale of advertising or subscriptions related to such content. Without limiting the foregoing and for avoidance of doubt, (i) as of the Effective Date the Company's Specified Line(s) of Business specifically excludes the Company's operations to the extent related to content focused on electronic gaming news, products or services and (ii) the parties expressly acknowledge and agree that in the event the Company acquires or develops any operations after the Effective Date for which Executive becomes responsible and which are his Participation is not directly related to the Specified Line(s) of Business ("Other Line(s) of Business'), (x) Executive may from and after the Termination Date compete with the Company in the Other Line(s) of Business in accordance with Section 5(b)(i) and (y) to the extent that Executive's Base Salary and/or Bonus reflect compensation related to the Other Line(s) of Business (i.e., to the extent such Base Salary and Bonus is higher than it would have been had Executive not had responsibility for operations related to such Other Line(s) of Business), such portion of Executive's Base Salary and Bonus shall be excluded from the calculation of amounts payable pursuant to Section 4(d). The parties may, but shall not be under any obligation to, agree to amend the definition of Specified Line(s) of Business in the future.
Appears in 1 contract
Noncompete, Non-Solicitation. (a) In further consideration of the compensation to be paid to Executive hereunder, Executive acknowledges that in the course of Executive's ’s employment with the Company and any applicable Affiliate thereof, Executive will during the Employment Period become familiar with the trade secrets, business plans and business strategies and with other Confidential Information (as defined on the Appendix hereto) concerning the Company and any applicable Affiliate of the Company (and their respective predecessors, successors and assigns) and that Executive's ’s services have been and shall be of special, unique and extraordinary value to the Company and any applicable Affiliate of the Company. Therefore, Executive agrees that, during the Employment Period and for one (1) year thereafter (such period, the "“Noncompete Period"”), Executive shall not directly or indirectly (whether for Executive or for any other Person) (A) operate, manage, control, engage in, participate in (whether as an officer, director, employee, partner, agent, representative or otherwise), permit Executive's ’s name to be used by, consult with, advise, render services for (alone or in association with any other Person), or otherwise assist in any manner (collectively, to "“Participate" ” in) or (B) own any interest in, lend to or invest in, (i) International Data Group, Inc., CMP Media, Inc. (a subsidiary of United News & Business Media PLC); or CNET Networks, Inc.; (ii) any Person which, to Executive's ’s knowledge, International Data Group, Inc., CMP Media, Inc. (a subsidiary of United News & Business Media PLC) or CNET Networks, Inc. owns an interest in, lends or otherwise provides financial support to, manages, controls or is party to one or more agreements that are singly or in the aggregate are material to either party thereto; (iii) any Person known to Executive to be a successor, assignee, partner, joint venturer, subsidiary, division or Affiliate of any of the Persons referenced in clause (i) or (ii) of this sentence; (iv) any Person that engages known by Executive to engage in, operatesoperate, manages manage or controls control any venture or enterprise which directly or indirectly engages in the Specified Line(s) of Business; or (v) any Person known to Executive to be a successor, assignee, partner, joint venturer, subsidiary, division or Affiliate of any of the Persons referenced in clause (iv) of this sentence.
(b) Notwithstanding the foregoing, (i) Executive may Participate in any business of any entity listed in clause (iv) or clause (v) of Section 5(a) to the extent such business is not directly related to the Specified Line(s) of Business and (ii) for purposes of Section 5(a), Executive shall not be considered to "“own any interest in, lend to or invest in" ” any corporation with respect to which (x) Executive owns, indirectly through a mutual fund or other similar pooled investment vehicle, a passive investment in the publicly-traded stock of such corporation. Also notwithstanding the foregoing, or (y) Executive owns (either as shareholder of record or as beneficial owner) publicly-traded stock of a corporation that constitutes less than 1% of the outstanding shares of such corporation, provided that the Specified Line(s) stock held by Executive in such corporation does not comprise more than 5% of Business are not material to such corporation's financial condition or results of operationsExecutive’s net worth. Without limiting the foregoing and for avoidance of doubt, (A) it would constitute a breach of Section 5(a) if Executive during the Noncompete Period performs services (whether in a sales or management or other capacity) for America Online, Inc., Yahoo! Inc., The Microsoft Network L.L.C. or eBay Inc. or their respective affiliates, which services are primarily related to the creation or display of content focused on technology technology, consumer electronics or electronic gaming news, products or services or the sale of advertising or subscriptions related to such content and (B) it would not constitute a breach of Section 5(a) if Executive during the Noncompete Period performs other services for America Online, Inc., Yahoo! Inc., The Microsoft Network L.L.C. or eBay Inc. or their respective affiliates.
(c) During the Employment Period and for one (1) year thereafter, Executive shall not directly or indirectly through another Person (i) induce or attempt to induce any employee of the Company or any Affiliate of the Company to leave the employ of the Company or such Affiliate, or in any way interfere with the relationship between the Company or any Affiliate of the Company and any employee thereof, (ii) hire any person who was an employee of the Company or any Affiliate of the Company at any time during the one (1) year period prior to the termination of the Employment Period, (iii) call on, solicit or service any licensee, licensor, customer, supplier, franchisee or other business relation of the Company or any Affiliate of the Company (each a "“Company Business Relation"”) in order to induce or attempt to induce such Company Business Relation to cease or reduce doing business with the Company or such Affiliate, or in any way interfere with the relationship between any such Company Business Relation and the Company or any Affiliate of the Company, (iv) make any negative statements or communications about the Company or any of its Affiliates or their respective directors, officers, employees, agents, products or services, or compare the Company or any of its Affiliates or their respective directors, officers, employees, agents, products or services to any third party or the directors, officers, employees, agents, products or services of any third party, or (v) directly or indirectly acquire or attempt to acquire any business in the United States of America to which the Company or any of its Affiliates has made an acquisition proposal (of which Executive has knowledge) prior to the Termination Date relating to the possible acquisition of such business (an "“Acquisition Target"”) by the Company or any of its Affiliates, or take any action to induce or attempt to induce any Acquisition Target to consummate any acquisition, investment or other similar transaction with any Person other than the Company or any of the Company's ’s Affiliates.
(d) Notwithstanding anything in Section Sections 5(c)(iii) or 5(c)(v) to the contrary, it shall not be deemed a violation of Section Sections 5(c)(iii) or 5(c)(v) for Executive to call on or solicit business from any existing customer or supplier of the Company, so long as Executive is not performing duties or services prohibited by Section 5(a) or violating clauses (i), (ii), (iv) or (v) of Section 5(c). By way of illustration, and without limiting the generality of the foregoing (i) it would constitute a breach of the Agreement if Executive during the Noncompete Period solicits business from Dell Computer Corporation or its affiliates (collectively, "“Dell"”) while Executive is employed as the Vice President of Technology Sales for Yahoo! Inc. or as the General Manager of Sales for AOL Technology and (ii) it would not constitute a breach of the Agreement if Executive solicits business from Dell while Executive is employed as Vice President of Sales for Yahoo! Inc. or as the Publisher of Time Magazine, provided that (x) Executive did not violate clauses (i), (ii), (iv) or (v) of Section 5(c) and (y) at the time Executive solicited the business from Dell, the business of Yahoo! Inc. or Time Magazine, as the case may be, was not primarily related to the creation or display of content focused on technology technology, consumer electronics or electronic gaming news, products or services or the sale of advertising or subscriptions related to such content.
(e) If, at the time of enforcement of Section 5 of this Agreement, a court shall hold that the duration, scope, or area restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum period, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law. Because Executive's ’s services are unique and because Executive has access to Confidential Information and Work Product (as defined on the Appendix hereto), the parties hereto agree that money damages would not be an adequate remedy for any breach of this Agreement. Therefore, in the event of a breach or threatened breach of this Agreement, the Company or its successors or assigns may, in addition to other rights and remedies existing in their favor, apply to any court of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce, or prevent any violations of, the provisions hereof (without posting bond or other security). In addition, in the event of a breach or violation by Executive of Section 5 hereof, as determined by a Judgment of Breach or a Severance Relief Injunction, the period set forth in such Section shall be tolled until such breach or violation has been duly cured. Executive agrees that the restrictions contained in Section 5 are reasonable and that Executive has received consideration in exchange therefor.
(f) As used herein, "“Specified Line(s) of Business" ” shall mean any business that is primarily related to the creation or display of content focused on technology technology, consumer electronics or electronic gaming news, products or services or the sale of advertising or subscriptions related to such content. Without limiting the foregoing and for avoidance of doubt, (i) as of the Effective Date the Company's Specified Line(s) of Business specifically excludes the Company's operations to the extent related to content focused on electronic gaming news, products or services and (ii) the parties expressly acknowledge and agree that in the event the Company acquires or develops any operations after the Effective Date for which Executive becomes responsible and which are not directly related to the Specified Line(s) of Business ("“Other Line(s) of Business'”), (x) Executive may from and after the Termination Date compete with the Company in the Other Line(s) of Business in accordance with Section 5(b)(i) and (y) to the extent that Executive's ’s Base Salary and/or Bonus reflect compensation related to the Other Line(s) of Business (i.e., to the extent such Base Salary and Bonus is higher than it would have been had Executive not had responsibility for operations related to such Other Line(s) of Business), such portion of Executive's ’s Base Salary and Bonus shall be excluded from the calculation of amounts payable pursuant to Section 4(d). The parties may, but shall not be under any obligation to, agree to amend the definition of Specified Line(s) of Business in the future.
Appears in 1 contract
Noncompete, Non-Solicitation. (a) In further consideration of the compensation to be paid to Executive hereunder, Executive acknowledges that in the course of Executive's employment with the Company and any applicable Affiliate thereof, Executive will during the Employment Period become familiar with the trade secrets, business plans and business strategies and with other Confidential Information (as defined on the Appendix hereto) concerning the Company and any applicable Affiliate of the Company (and their respective predecessors, successors and assigns) and that Executive's services have been and shall be of special, unique and extraordinary value to the Company and any applicable Affiliate of the Company. Therefore, Executive agrees that, during the Employment Period and for one (1) year thereafter (such period, the "Noncompete Period"), Executive shall not directly or indirectly (whether for Executive or for any other Person) (A) own any interest in, operate, manage, control, engage in, participate in (whether as an officer, director, employee, partner, agent, representative or otherwise), invest in, permit Executive's name to be used by, consult with, advise, render services for (alone or in association with any other Person), or otherwise assist in any manner (collectively, to "Participate" in) or (B) own any interest in, lend to or invest in, (i) International Data Group, Inc., CMP Media, Inc. (a subsidiary of United News & Media PLC); or CNET Networks, Inc.; (ii) any Person which, to Executive's knowledge, International Data Group, Inc., CMP Media, Inc. (each a subsidiary of United News & Media PLC"Restricted Person") or CNET Networks, Inc. owns an interest in, lends or otherwise provides financial support to, manages, controls or is party to one or more agreements that are singly or in the aggregate are material to either party thereto; (iii) any successor, assignee, partner, joint venturer, subsidiary, division or Affiliate of any of the Persons referenced in clause (i) or (ii) of this sentence; (iv) any Person that engages in or owns, invests in, operates, manages or controls any venture or enterprise which directly or indirectly engages or proposes to engage in any business or enterprise which manufactures, designs, produces, renders or sells products or services which compete with the products and services of the Company (or any products or services the Company is in the Specified Line(sprocess of developing), as the Company's and its Affiliates businesses exist at the Termination Date or are in process as of the Termination Date (the "Company's Business"; as of the Effective Date, the Company's Business consists of the publication, in print and electronic media, of magazines, newsletters and websites (collectively, "publications") the primary editorial content of Businesswhich relates to technology or electronic games, and the sale of advertising and subscriptions related to such publications; or (vii) any successor, assignee, partner, joint venturerventure or collaboration partner, subsidiary, division or Affiliate of any Restricted Person; or (iii) any Person in which any Restricted Person owns an interest or participates, which any of the Persons referenced in clause Restricted Person manages or controls (iv) of this sentence.
(b) Notwithstanding the foregoingwhether as an officer, (i) Executive may Participate in any business of any entity listed in clause (iv) director, employee, partner, agent, representative or clause (v) of Section 5(a) to the extent such business is not directly related to the Specified Line(s) of Business and (ii) for purposes of Section 5(aotherwise), Executive shall not be considered to "own or with which any interest in, lend to Restricted Person consults or invest in" any corporation with respect to which (x) any Restricted Person otherwise provides management or financial support. Nothing herein shall prohibit Executive ownsfrom being an owner, indirectly through a mutual fund or other similar pooled investment vehicle, of a passive investment in the publicly-traded stock of a corporation which is publicly traded, so long as Executive has no other participation in the business of any such corporation. Also notwithstanding the foregoing, or (y) Executive owns (either as shareholder of record or as beneficial owner) publicly-traded stock of such corporation, provided that the Specified Line(s) of Business are not material to such corporation's financial condition or results of operations. Without limiting the foregoing generality of the foregoing, Executive and for avoidance the Company agree that as of doubtthe Effective Date, (A) it would constitute the following persons are each deemed to be a breach of Section 5(a) if Executive during the Noncompete Period performs services (whether in a sales or management or other capacity) for America Online"Restricted Person": International Data Group, Inc.; CMP Media, Yahoo! Inc., The Microsoft Network L.L.C. or eBay Inc. or their respective affiliates, which services are primarily related to the creation or display (a subsidiary of content focused on technology news, products or services or the sale of advertising or subscriptions related to such content and (B) it would not constitute a breach of Section 5(a) if Executive during the Noncompete Period performs other services for America OnlineUnited News & Media PLC)CNET Networks, Inc., Yahoo! Inc., ; and The Microsoft Future Network L.L.C. or eBay Inc. or their respective affiliatesPLC.
(cb) During the Employment Period and for one (1) year thereafter, Executive shall not directly or indirectly through another Person (i) induce or attempt to induce any employee of the Company or any Affiliate of the Company to leave the employ of the Company or such Affiliate, or in any way interfere with the relationship between the Company or any Affiliate of the Company and any employee thereof, (ii) hire any person who was an employee of the Company or any Affiliate of the Company at any time during the one (1) year period prior to the termination of the Employment Period, (iii) call on, solicit or service any customer, supplier, licensee, licensor, customer, supplier, franchisee or other business relation of the Company or any Affiliate of the Company (each a "Company Business Relation") in order to induce or attempt to induce such Company Business Relation Person to cease or reduce doing business with the Company or such AffiliateAffiliate (for avoidance of doubt and without limiting the foregoing, it shall constitute a material violation of this Section 5(b) for Executive to make any effort to cause any customer, supplier, licensee, licensor, franchisee or other business relation of the Company to purchase from a third party any goods or services that are offered at such time by the Company), or in any way interfere with the relationship between any such Company Business Relation customer, supplier, licensee or business relation and the Company or any Affiliate of the Company, (iv) make including, without limitation, making any negative statements or communications about the Company or any of its Affiliates or their respective directors, officers, employees, agents, products or services, or compare the Company or any of its Affiliates or their respective directors, officers, employees, agents, products or services to any third party or the directors, officers, employees, agents, products or services of any third partyAffiliates, or (viv) directly or indirectly acquire or attempt to acquire any business in the United States of America to which the Company or any of its Affiliates has made an acquisition proposal prior to the Termination Date relating to the possible acquisition of such business (an "Acquisition Target") by the Company or any of its Affiliates, or take any action to induce or attempt to induce any Acquisition Target to consummate any acquisition, investment or other similar transaction with any Person other than the Company or any of the Company's Affiliates.
(d) Notwithstanding anything in Section 5(c)(iii) to the contrary, it shall not be deemed a violation of Section 5(c)(iii) for Executive to call on or solicit business from any existing customer or supplier of the Company, so long as Executive is not performing duties or services prohibited by Section 5(a) or violating clauses (i), (ii), (iv) or (v) of Section 5(c). By way of illustration, and without limiting the generality of the foregoing (i) it would constitute a breach of the Agreement if Executive during the Noncompete Period solicits business from Dell Computer Corporation or its affiliates (collectively, "Dell") while Executive is employed as the Vice President of Technology Sales for Yahoo! Inc. or as the General Manager of Sales for AOL Technology and (ii) it would not constitute a breach of the Agreement if Executive solicits business from Dell while Executive is employed as Vice President of Sales for Yahoo! Inc. or as the Publisher of Time Magazine, provided that (x) Executive did not violate clauses (i), (ii), (iv) or (v) of Section 5(c) and (y) at the time Executive solicited the business from Dell, the business of Yahoo! Inc. or Time Magazine, as the case may be, was not primarily related to the creation or display of content focused on technology news, products or services or the sale of advertising or subscriptions related to such content.
(ec) If, at the time of enforcement of Section 5 of this Agreement, a court shall hold that the duration, duration or scope (including without limitation the geographical scope, or area ) of the restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum period, period or scope or (including without limitation the geographical area scope) reasonable under such circumstances shall be substituted for the stated period, period or scope or area (including without limitation the geographical scope) and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, period or scope and area (including without limitation the geographical scope) permitted by law. Because Executive's services are unique and because Executive has access to Confidential Information and Work Product (as defined on the Appendix hereto), the parties hereto agree that money damages would may not be an adequate remedy for any breach of this Agreement. Therefore, in the event of a breach or threatened breach of this Agreement, the Company or its successors or assigns may, in addition to other rights and remedies existing in their favor, apply to any court of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce, or prevent any violations of, the provisions hereof (without posting a bond or other security). In addition, in the event of a an alleged breach or violation by Executive of Section 5 hereof5, the period set forth in such Section shall be tolled until such breach or violation has been duly cured. Executive agrees that the restrictions contained in Section 5 are reasonable and that Executive has received consideration in exchange therefor.
(f) As used herein, "Specified Line(s) of Business" shall mean any business that is primarily related to the creation or display of content focused on technology news, products or services or the sale of advertising or subscriptions related to such content. Without limiting the foregoing and for avoidance of doubt, (i) as of the Effective Date the Company's Specified Line(s) of Business specifically excludes the Company's operations to the extent related to content focused on electronic gaming news, products or services and (ii) the parties expressly acknowledge and agree that in the event the Company acquires or develops any operations after the Effective Date for which Executive becomes responsible and which are not directly related to the Specified Line(s) of Business ("Other Line(s) of Business'), (x) Executive may from and after the Termination Date compete with the Company in the Other Line(s) of Business in accordance with Section 5(b)(i) and (y) to the extent that Executive's Base Salary and/or Bonus reflect compensation related to the Other Line(s) of Business (i.e., to the extent such Base Salary and Bonus is higher than it would have been had Executive not had responsibility for operations related to such Other Line(s) of Business), such portion of Executive's Base Salary and Bonus shall be excluded from the calculation of amounts payable pursuant to Section 4(d). The parties may, but shall not be under any obligation to, agree to amend the definition of Specified Line(s) of Business in the future.
Appears in 1 contract
