Noncompetition Agreement. (a) Employee shall not, during the term of his employment hereunder, be engaged in any other business activity pursued for gain, profit or other pecuniary advantage if such activity interferes with Employee's duties and responsibilities hereunder. The foregoing limitations shall not be construed as prohibiting Employee from making personal investments in such form or manner as will neither require his services in the operation or affairs of the companies or enterprises in which such investments are made nor violate the terms of this paragraph 3. Employee will not, during the period of his employment by or with Employer, and for a period of two (2) years immediately following the termination of his employment under this Agreement, except as provided below, directly or indirectly, for himself or on behalf of or in conjunction with any other person, persons, company, partnership, corporation or business of whatever nature: (i) engage, as an officer, director, shareholder, owner, partner, joint venturer, or in a managerial capacity, whether as an employee, independent contractor, consultant or advisor, or as a sales representative, in any business in direct competition with Employer or the Company within 100 miles of where the Company or any of its subsidiaries conduct business, including any territory serviced by the Company or any of such subsidiaries (the "TERRITORY"); (ii) call upon any person who is, at that time, an employee of Employer or the Company (including the respective subsidiaries thereof) in a sales or managerial capacity for the purpose or with the intent of enticing such employee away from or out of the employ of Employer or the Company (including the respective subsidiaries thereof); (iii) call upon any person or entity which is, at that time, or which has been, within one (1) year prior to that time, a customer of the Company (including the respective subsidiaries thereof) for the purpose of soliciting or selling products or services in direct competition with the Company; or (iv) call upon any prospective acquisition candidate, on Employee's own behalf or on behalf of any competitor, which candidate was, to Employee's actual knowledge after due inquiry, either called upon by Employer or the Company (including the respective subsidiaries thereof) or for which Employer or the Company made an acquisition analysis for the purpose of acquiring such entity or all or substantially all of such entity's assets. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Employee from acquiring as a passive investment not more than two percent (2%) of the capital stock of a competing business the stock of which is traded on a national securities exchange or on an over-the -counter or similar market. (b) Because of the difficulty of measuring economic losses to Employer or the Company as a result of a breach of the foregoing covenant, and because of the immediate and irreparable damage that could be caused to Employer or the Company for which they would have no other adequate remedy, Employee agrees that the foregoing covenant may be enforced by Employer or the Company in the event of breach or threatened breach by Employee, by injunctions, restraining orders and other appropriate equitable relief. (c) It is agreed by the parties that the foregoing covenants in this paragraph 3 impose a reasonable restraint on Employee in light of the activities and business of the Company (including the Company's subsidiaries) on the date of the execution of this Agreement and the current plans of the Company (including the Company's subsidiaries); but it is also the intent of the Company and Employee that such covenants be construed and enforced in accordance with the changing activities, business and locations of the Company (including the Company's subsidiaries) throughout the term of this covenant, whether before or after the date of termination of the employment of Employee. For example, if, during the term of this Agreement, the Company (including the Company's subsidiaries) engages in new and different activities, enters a new business or establishes new locations for its current activities or business in addition to or other than the activities or business enumerated under the Recitals above or the locations currently established therefor, then Employee will be precluded from soliciting the customers or Employees of such new activities or business or from such new location and from directly competing with such new business within 100 miles of its then-established operating location(s) through the term of this covenant. It is further agreed by the parties hereto that, in the event that Employee shall cease to be employed hereunder, and shall enter into a business or pursue other activities not in competition with the Company (including the Company's subsidiaries), or similar activities or business in locations the operation of which, under such circumstances, does not violate clause (i) of paragraph 3(a), Employee shall not be chargeable with a violation of this paragraph 3 if the Company (including the Company's subsidiaries) shall thereafter enter the same, similar or a competitive (i) business, (ii) course of activities or (iii) location, as applicable. (d) The covenants in this paragraph 3 are severable and separate, and the unenforceability of any specific covenant shall not affect the provisions of any other covenant. Moreover, in the event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth herein are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which the court deems reasonable, and this Agreement shall thereby be reformed. (e) All of the covenants in this paragraph 3 shall be construed as an agreement independent of any other provision in this Agreement, and the existence of any claim or cause of action of Employee against Employer or the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Employer or the Company of such covenants. It is specifically agreed that the period of two (2) years following termination of employment stated at the beginning of this paragraph 3, during which the agreements and covenants of Employee made in this paragraph 3 shall be effective, shall be computed by excluding from such computation any time during which Employee is in violation of any provision of this paragraph 3.
Appears in 4 contracts
Samples: Management Employment Agreement (Landcare Usa Inc), Management Employment Agreement (Landcare Usa Inc), Management Employment Agreement (Landcare Usa Inc)
Noncompetition Agreement. (a) Employee shall not, during the term of his employment hereunder, be engaged in any other business activity pursued for gain, profit or other pecuniary advantage if such activity interferes with Employee's duties and responsibilities hereunder. The foregoing limitations shall not be construed as prohibiting Employee from making personal investments in such form or manner as will neither require his services in the operation or affairs of the companies or enterprises in which such investments are made nor violate the terms of this paragraph 3. Employee will not, during the period of his employment by or with EmployerCompany, and for a period of two (2) years immediately following the termination of his employment under this Agreement, except as provided below, directly or indirectly, for himself or on behalf of or in conjunction with any other person, persons, company, partnership, corporation or business of whatever nature:
(i) engage, as an officer, director, shareholder, owner, partner, joint venturer, or in a managerial capacity, whether as an employee, independent contractor, consultant or advisor, or as a sales representative, in any business in direct competition with Employer Company or the Company any of its subsidiaries and affiliates within 100 miles of where the Company or any of its subsidiaries and affiliates conduct business, including any territory serviced by the Company or any of such subsidiaries (the "TERRITORY");
(ii) call upon any person who is, at that time, an employee of Employer Company or the Company (including the respective any of its subsidiaries thereof) in a or affiliates sales or managerial capacity for the purpose or with the intent of enticing such employee away from or out of the employ of Employer Company or the Company (including the respective any of its subsidiaries thereof)or affiliates or any its subsidiaries or affiliates;
(iii) call upon any person or entity which is, at that time, or which has been, within one (1) year prior to that time, a customer of the Company (including the respective or any of its subsidiaries thereof) or affiliates for the purpose of soliciting or selling products or services in direct competition with the CompanyCompany or any of its subsidiaries or affiliates; or
(iv) call upon any prospective acquisition candidate, on Employee's own behalf or on behalf of any competitor, which candidate was, to Employee's actual knowledge after due inquiry, either called upon by Employer Company or the Company (including the respective any of its subsidiaries thereof) or affiliates or for which Employer or the Company made Employee participated in an acquisition analysis for the purpose of acquiring such entity or all or substantially all of such entity's assets. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Employee from acquiring as a passive investment not more than two percent (2%) of the capital stock of a competing business the stock of which is traded on a national securities exchange or on an over-the -counter or similar market.
(b) Because of the difficulty of measuring economic losses to Employer Company or the Company any of its subsidiaries or affiliates as a result of a breach of the foregoing covenant, and because of the immediate and irreparable damage that could be caused to Employer Company or the Company any of its subsidiaries or affiliates for which they would have no other adequate remedy, Employee agrees that the foregoing covenant may be enforced by Employer Company or the Company any of its subsidiaries or affiliates in the event of breach or threatened breach by Employee, by injunctions, restraining orders and other appropriate equitable relief.
(c) It is agreed by the parties that the foregoing covenants in this paragraph 3 impose a reasonable restraint on Employee in light of the activities and business of the Company (including the Company's subsidiaries) on the date of the execution of this Agreement and the current plans of the Company (including the Company's subsidiaries)or any of its subsidiaries or affiliates; but it is also the intent of the Company and Employee that such covenants be construed and enforced in accordance with the changing activities, business and locations of the Company (including the Company's subsidiaries) or any of its subsidiaries or affiliates throughout the term of this covenant, whether before or after the date of termination of the employment of Employee. For example, if, during the term of this Agreement, the Company (including the Company's subsidiaries) or any of its subsidiaries or affiliates engages in new and different activities, enters a new business or establishes new locations for its current activities or business in addition to or other than the activities or business enumerated under the Recitals above or the locations currently established therefor, then Employee will be precluded from soliciting the customers or Employees of such new activities or business or from such new location and from directly competing with such new business within 100 miles of its then-established operating location(s) through the term of this covenant. It is further agreed by the parties hereto that, in the event that Employee shall cease to be employed hereunder, and shall enter into a business or pursue other activities not in competition with the Company (including the Company's subsidiaries)or any of its subsidiaries or affiliates, or similar activities or business in locations the operation of which, under such circumstances, does not violate clause (i) of paragraph 3(a), Employee shall not be chargeable with a violation of this paragraph 3 if the Company (including the Company's subsidiaries) or any of its subsidiaries or affiliates shall thereafter enter the same, similar or a competitive (i) business, (ii) course of activities or (iii) location, as applicable.
(d) The covenants in this paragraph 3 are severable and separate, and the unenforceability of any specific covenant shall not affect the provisions of any other covenant. Moreover, in the event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth herein are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which the court deems reasonable, and this Agreement shall thereby be reformed.
(e) All of the covenants in this paragraph 3 shall be construed as an agreement independent of any other provision in this Agreement, and the existence of any claim or cause of action of Employee against Employer Company or the Companyany of its subsidiaries or affiliates, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Employer Company or the Company any of its subsidiaries or affiliates of such covenants. It is specifically agreed that the period of two (2) years following termination of employment stated at the beginning of this paragraph 3, during which the agreements and covenants of Employee made in this paragraph 3 shall be effective, shall be computed by excluding from such computation any time during which Employee is in violation of any provision of this paragraph 3.
Appears in 4 contracts
Samples: Employment Agreement (Comfort Systems Usa Inc), Employment Agreement (Comfort Systems Usa Inc), Employment Agreement (Comfort Systems Usa Inc)
Noncompetition Agreement. (a) Employee shall not, during During the term of his employment hereunder, be engaged in any other business activity pursued for gain, profit or other pecuniary advantage if such activity interferes with Employee's duties and responsibilities hereunder. The foregoing limitations shall not be construed as prohibiting Employee from making personal investments in such form or manner as will neither require his services in the operation or affairs of the companies or enterprises in which such investments are made nor violate the terms of this paragraph 3. Employee will not, during the period of his employment by or with Employer, Agreement and for a period of two (2) years immediately following the termination of his employment under this Agreement, except as provided belowthe Employee shall not, for any reason whatsoever, directly or indirectly, for himself or on behalf of of, or in conjunction with with, any other person, persons, company, partnership, corporation or business of whatever nature:
: (i1) engagecall on any customer of the Company, as an officerpast or present, directorincluding, shareholderbut not limited to, ownerany customers obtained for the Company by the Employee, partner, joint venturer, for the purpose of soliciting or selling any products or services in a managerial capacity, whether as an employee, independent contractor, consultant or advisor, or as a sales representative, in any business in direct competition with Employer or those of the Company; (2) call on any employee of the Company within 100 miles of where the Company or any of its subsidiaries conduct business, including any territory serviced by the Company or any of such subsidiaries (the "TERRITORY");
(ii) call upon any person who is, at that time, an employee of Employer or the Company (including the respective subsidiaries thereof) in a sales or managerial capacity for the purpose or with the intent of enticing such employee them away from or out of the employ of Employer or the Company for any reason whatever; or (including the respective subsidiaries thereof);
(iii3) call upon establish, enter into, be employed by or for, advise, consult with or become an owner in or a part of, any person company, partnership, corporation or other business entity which is, at that timeor venture, or which has beenin any way engage in business for himself or for others, in competition with the Company within one (1) year prior to that time, a customer 100 miles of the home office of the Company (including or its subsidiaries having a permanent and known facility wherein the respective subsidiaries thereof) for the purpose of soliciting or selling products or services in direct competition with the Company; or
(iv) call upon any prospective acquisition candidate, on Employee's own behalf or on behalf of any competitor, which candidate was, to Employee's actual knowledge after due inquiry, either called upon by Employer or the Company (including the respective subsidiaries thereof) or for which Employer or the Company made an acquisition analysis for the purpose of acquiring such entity or all or substantially all of such entity's assets. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Employee from acquiring as a passive investment not more than two percent (2%) of the capital stock of a competing business the stock of which is traded on a national securities exchange or on an over-the -counter or similar markethas served.
(b) Because These covenants on the part of the difficulty Employee shall be construed as an agreement independent of measuring economic losses to Employer any other provision of this Agreement, and the existence of any claim or the Company as a result cause of a breach action of the foregoing Employee against the Company, whether predicated on this Agreement or otherwise, shall not preclude the Company's enforcement of this covenant, and because of the immediate and irreparable damage that could be caused to Employer or the Company for which they would have no other adequate remedy, Employee agrees that the foregoing covenant may be enforced by Employer or the Company in . In the event of a breach or threatened breach by Employeethe Employee of his obligations under this Section 3, by injunctions, restraining orders and other appropriate equitable relief.
(c) It is agreed by the parties Employee acknowledges that the foregoing covenants in this paragraph 3 impose a reasonable restraint on Company will not have an adequate remedy at law and shall be entitled to such equitable and injunctive relief as may be available to restrain the Employee in light from the violation of the activities and business of provisions hereof. Nothing herein shall be construed as prohibiting the Company (from pursuing any other remedies available for such breach or threatened breach, including the Company's subsidiaries) on recovery of damages from the date of the execution of this Agreement and the current plans of the Company (including the Company's subsidiaries); but it is also the intent of the Company and Employee that such covenants be construed and enforced in accordance with the changing activities, business and locations of the Company (including the Company's subsidiaries) throughout the term of this covenant, whether before or after the date of termination of the employment of Employee. For example, if, during the term of this Agreement, the Company (including the Company's subsidiaries) engages in new and different activities, enters a new business or establishes new locations for its current activities or business in addition to or other than the activities or business enumerated under the Recitals above or the locations currently established therefor, then Employee will be precluded from soliciting the customers or Employees of such new activities or business or from such new location and from directly competing with such new business within 100 miles of its then-established operating location(s) through the term of this covenant. It is further agreed by the parties hereto that, in the event that Employee shall cease to be employed hereunder, and shall enter into a business or pursue other activities not in competition with the Company (including the Company's subsidiaries), or similar activities or business in locations the operation of which, under such circumstances, does not violate clause (i) of paragraph 3(a), Employee shall not be chargeable with a violation of this paragraph 3 if the Company (including the Company's subsidiaries) shall thereafter enter the same, similar or a competitive (i) business, (ii) course of activities or (iii) location, as applicable.
(d) The covenants in this paragraph Section 3 are severable and separate, and the unenforceability of any specific covenant shall not affect the provisions of any other covenant. Moreover, in the event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth herein are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which the court deems reasonable, reasonable and this the Agreement shall thereby be reformed.
(e) All of the covenants in this paragraph 3 shall be construed as an agreement independent of any other provision in this Agreement, and the existence of any claim or cause of action of Employee against Employer or the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Employer or the Company of such covenants. It is specifically agreed that the period of two (2) years following termination of employment stated at the beginning of this paragraph 3, during which the agreements and covenants of Employee made in this paragraph 3 shall be effective, shall be computed by excluding from such computation any time during which Employee is in violation of any provision of this paragraph 3.
Appears in 3 contracts
Samples: Employment Agreement (Allwaste Inc), Employment Agreement (Allwaste Inc), Employment Agreement (Allwaste Inc)
Noncompetition Agreement. (a) The Employee will be a full-time employee of the Company and shall not, during the term devote all of his employment business time to the performance of his duties hereunder, be engaged . Employee acknowledges that in any other business activity pursued for gain, profit or other pecuniary advantage if such activity interferes with Employee's the course of the performance of his duties and responsibilities hereunder. The foregoing limitations shall as a necessary incident thereof, the Company may make available or impart to Employee certain financial and business information concerning the business, affairs, plans, and programs of the Company which is proprietary to the Company and was not be construed as prohibiting obtained by the Employee from making personal investments in such form or manner as will neither require his services in sources other than the operation or affairs of Company (the companies or enterprises in which such investments are made nor violate "Proprietary Information").
(b) For the terms of this paragraph 3. Employee will not, during the period of his employment by or with Employer, Term hereof and for a period of two one (21) years immediately following year after the earlier of expiration of such Term or the termination of his Employee's employment under this Agreementfor cause (as defined in Section 3(c) hereof), except as provided belowEmployee shall not (i) in business or otherwise use for himself or disclose to any other person any Proprietary Information concerning the Company or any information with respect to the business of the Company, for any purpose whatsoever; (ii) directly or indirectly, for himself individually or on behalf with others, solicit or attempt to solicit any employees, or any representatives or agents of or the Company, in conjunction connection with any other personbusiness which is the same as or similar to or competitive with the Business of the Company, persons, company, partnership, corporation which representative or business agent is known by Employee to be a representative or agent of whatever nature:the Company and engaged in the Business of the Company.
(ic) engage, During the Term hereof Employee shall not in the States of New York or New Jersey serve as or become an officer, director, shareholder, ownerconsultant, partner, joint venturerowner, principal, or in a managerial capacityotherwise, whether as an employeedirectly or indirectly, independent contractor, consultant or advisor, or as a sales representative, in enter into any business in direct competition which is the same as or similar to or competitive with Employer the business of the Company or service customers of the Company within 100 miles of where the Company or geographic areas indicated in this subsection.
(d) Employee further agrees that he will not use any of its subsidiaries conduct business, including the Proprietary Information in connection with the purchase or sale of any territory serviced by securities of the Company or any Company. The provisions of such subsidiaries (this Section 4 shall survive the "TERRITORY");termination of this Agreement.
(iie) call upon any person who is, at that time, an employee of Employer or Notwithstanding the Company (including the respective subsidiaries thereof) in a sales or managerial capacity for the purpose or with the intent of enticing such employee away from or out of the employ of Employer or the Company (including the respective subsidiaries thereof);
(iii) call upon any person or entity which is, at that time, or which has been, within aforementioned one (1) year prior to that timeperiod expressed in clauses (b) and (c) above, a customer of in the event the Employee is terminated by the Company without "Cause" (including as defined in Section 3(c) hereof) then the respective subsidiaries thereof) for the purpose period of soliciting or selling products or services in direct non-competition with the Company; orshall be void and of no effect.
(ivf) call upon any prospective acquisition candidate, on Employee's own behalf or on behalf of any competitor, which candidate was, to Employee's actual knowledge after due inquiry, either called upon by Employer or the Company (including the respective subsidiaries thereof) or for which Employer or the Company made an acquisition analysis for the purpose of acquiring such entity or all or substantially all of such entity's assets. Notwithstanding the aboveforegoing, the foregoing covenant however, nothing contained in this Agreement shall not be deemed to prohibit Employee from acquiring purchasing and holding as a passive an investment not more than two percent (2%) 5% of any class of the capital stock of a competing business the stock of which is issued and outstanding and publicly traded (on a recognized national or regional securities exchange or on an in the over-the -counter or similar the-counter market.
(b) Because security of the difficulty of measuring economic losses to Employer or the Company as a result of a breach of the foregoing covenantany corporation, and because of the immediate and irreparable damage that could be caused to Employer or the Company for which they would have no other adequate remedy, Employee agrees that the foregoing covenant may be enforced by Employer or the Company in the event of breach or threatened breach by Employee, by injunctions, restraining orders and other appropriate equitable relief.
(c) It is agreed by the parties that the foregoing covenants in this paragraph 3 impose a reasonable restraint on Employee in light of the activities and business of the Company (including the Company's subsidiaries) on the date of the execution of this Agreement and the current plans of the Company (including the Company's subsidiaries); but it is also the intent of the Company and Employee that such covenants be construed and enforced in accordance with the changing activities, business and locations of the Company (including the Company's subsidiaries) throughout the term of this covenant, whether before or after the date of termination of the employment of Employee. For example, if, during the term of this Agreement, the Company (including the Company's subsidiaries) engages in new and different activities, enters a new business or establishes new locations for its current activities or business in addition to partnership or other than the activities or business enumerated under the Recitals above or the locations currently established therefor, then Employee will be precluded from soliciting the customers or Employees of such new activities or business or from such new location and from directly competing with such new business within 100 miles of its then-established operating location(s) through the term of this covenant. It is further agreed by the parties hereto that, in the event entity that Employee shall cease to be employed hereunder, and shall enter into conducts a business or pursue other activities not in competition with the Company (including the Company's subsidiaries), and of which he is not an employee or similar activities or business in locations the operation of which, under such circumstances, does not violate clause (i) of paragraph 3(a), Employee shall not be chargeable with a violation of this paragraph 3 if the Company (including the Company's subsidiaries) shall thereafter enter the same, similar or a competitive (i) business, (ii) course of activities or (iii) location, as applicabledirector.
(d) The covenants in this paragraph 3 are severable and separate, and the unenforceability of any specific covenant shall not affect the provisions of any other covenant. Moreover, in the event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth herein are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which the court deems reasonable, and this Agreement shall thereby be reformed.
(e) All of the covenants in this paragraph 3 shall be construed as an agreement independent of any other provision in this Agreement, and the existence of any claim or cause of action of Employee against Employer or the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Employer or the Company of such covenants. It is specifically agreed that the period of two (2) years following termination of employment stated at the beginning of this paragraph 3, during which the agreements and covenants of Employee made in this paragraph 3 shall be effective, shall be computed by excluding from such computation any time during which Employee is in violation of any provision of this paragraph 3.
Appears in 3 contracts
Samples: Employment Agreement (Ieh Corporation), Employment Agreement (Ieh Corporation), Employment Agreement (Ieh Corporation)
Noncompetition Agreement. (a) Employee shall not, during the term of his her employment hereunder, be engaged in any other business activity pursued for gain, profit or other pecuniary advantage if such activity interferes with Employee's ’s duties and responsibilities hereunder. The foregoing limitations shall not be construed as prohibiting Employee from making personal investments in such form or manner as will neither require his her services in the operation or affairs of the companies or enterprises in which such investments are made nor violate the terms of this paragraph 3. Employee will not, during the period of his her employment by or with EmployerCompany, and for a period of two (2) years immediately following the termination of his her employment under this Agreement, except as provided below, directly or indirectly, for himself herself or on behalf of or in conjunction with any other person, persons, company, partnership, corporation or business of whatever nature:
(i) engage, as an officer, director, shareholder, owner, partner, joint venturer, or in a managerial capacity, whether as an employee, independent contractor, consultant or advisor, or as a sales representative, in any business in direct competition with Employer Company or the Company any of its subsidiaries and affiliates within 100 miles of where the Company or any of its subsidiaries and affiliates conduct business, including any territory serviced by the Company or any of such subsidiaries (the "“TERRITORY"”);
(ii) call upon any person who is, at that time, an employee of Employer Company or the Company (including the respective any of its subsidiaries thereof) in a or affiliates sales or managerial capacity for the purpose or with the intent of enticing such employee away from or out of the employ of Employer Company or the Company (including the respective any of its subsidiaries thereof)or affiliates or any its subsidiaries or affiliates;
(iii) call upon any person or entity which is, at that time, or which has been, within one (1) year prior to that time, a customer of the Company (including the respective or any of its subsidiaries thereof) or affiliates for the purpose of soliciting or selling products or services in direct competition with the CompanyCompany or any of its subsidiaries or affiliates; or
(iv) call upon any prospective acquisition candidate, on Employee's ’s own behalf or on behalf of any competitor, which candidate was, to Employee's ’s actual knowledge after due inquiry, either called upon by Employer Company or the Company (including the respective any of its subsidiaries thereof) or affiliates or for which Employer or the Company made Employee participated in an acquisition analysis for the purpose of acquiring such entity or all or substantially all of such entity's ’s assets. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Employee from acquiring as a passive investment not more than two percent (2%) of the capital stock of a competing business the stock of which is traded on a national securities exchange or on an over-the -counter or similar market.
(b) Because of the difficulty of measuring economic losses to Employer Company or the Company any of its subsidiaries or affiliates as a result of a breach of the foregoing covenant, and because of the immediate and irreparable damage that could be caused to Employer Company or the Company any of its subsidiaries or affiliates for which they would have no other adequate remedy, Employee agrees that the foregoing covenant may be enforced by Employer Company or the Company any of its subsidiaries or affiliates in the event of breach or threatened breach by Employee, by injunctions, restraining orders and other appropriate equitable relief.
(c) It is agreed by the parties that the foregoing covenants in this paragraph 3 impose a reasonable restraint on Employee in light of the activities and business of the Company (including the Company's subsidiaries) on the date of the execution of this Agreement and the current plans of the Company (including the Company's subsidiaries)or any of its subsidiaries or affiliates; but it is also the intent of the Company and Employee that such covenants be construed and enforced in accordance with the changing activities, business and locations of the Company (including the Company's subsidiaries) or any of its subsidiaries or affiliates throughout the term of this covenant, whether before or after the date of termination of the employment of Employee. For example, if, during the term of this Agreement, the Company (including the Company's subsidiaries) or any of its subsidiaries or affiliates engages in new and different activities, enters a new business or establishes new locations for its current activities or business in addition to or other than the activities or business enumerated under the Recitals above or the locations currently established therefor, then Employee will be precluded from soliciting the customers or Employees of such new activities or business or from such new location and from directly competing with such new business within 100 miles of its then-established operating location(s) through the term of this covenant. It is further agreed by the parties hereto that, in the event that Employee shall cease to be employed hereunder, and shall enter into a business or pursue other activities not in competition with the Company (including the Company's subsidiaries)or any of its subsidiaries or affiliates, or similar activities or business in locations the operation of which, under such circumstances, does not violate clause (i) of paragraph 3(a), Employee shall not be chargeable with a violation of this paragraph 3 if the Company (including the Company's subsidiaries) or any of its subsidiaries or affiliates shall thereafter enter the same, similar or a competitive (i) business, (ii) course of activities or (iii) location, as applicable.
(d) The covenants in this paragraph 3 are severable and separate, and the unenforceability of any specific covenant shall not affect the provisions of any other covenant. Moreover, in the event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth herein are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which the court deems reasonable, and this Agreement shall thereby be reformed.
(e) All of the covenants in this paragraph 3 shall be construed as an agreement independent of any other provision in this Agreement, and the existence of any claim or cause of action of Employee against Employer Company or the Companyany of its subsidiaries or affiliates, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Employer Company or the Company any of its subsidiaries or affiliates of such covenants. It is specifically agreed that the period of two (2) years following termination of employment stated at the beginning of this paragraph 3, during which the agreements and covenants of Employee made in this paragraph 3 shall be effective, shall be computed by excluding from such computation any time during which Employee is in violation of any provision of this paragraph 3.
Appears in 1 contract
Noncompetition Agreement. (a) Employee shall not, during During the term of his employment hereunder, be engaged in any other business activity pursued for gain, profit or other pecuniary advantage if such activity interferes with Employee's duties and responsibilities hereunder. The foregoing limitations shall not be construed as prohibiting Employee from making personal investments in such form or manner as will neither require his services in the operation or affairs of the companies or enterprises in which such investments are made nor violate the terms of this paragraph 3. Employee will not, during the period of his employment by or with Employer, Agreement and for a period of two (2) years immediately following the termination of his employment under this Agreement, except as provided belowthe Employee shall not, for any reason whatsoever, directly or indirectly, for himself or on behalf of of, or in conjunction with with, any other person, persons, company, partnership, corporation or business of whatever nature:
: (i1) engagecall on any customer of the Company, as an officerpast or present, directorincluding, shareholderbut not limited to, ownerany customers obtained for the Company by the Employee, partner, joint venturer, for the purpose of soliciting or selling any products or services in a managerial capacity, whether as an employee, independent contractor, consultant or advisor, or as a sales representative, in any business in direct competition with Employer or those of the Company; (2) call on any employee of the Company within 100 miles of where the Company or any of its subsidiaries conduct business, including any territory serviced by the Company or any of such subsidiaries (the "TERRITORY");
(ii) call upon any person who is, at that time, an employee of Employer or the Company (including the respective subsidiaries thereof) in a sales or managerial capacity for the purpose or with the intent of enticing such employee them away from or out of the employ of Employer or the Company for any reason whatever; or (including the respective subsidiaries thereof);
(iii3) call upon establish, enter into, be employed by or for, advise, consult with or become an owner in or a part of, any person company, partnership, corporation or other business entity which is, at that timeor venture, or which has beenin any way engage in business for himself or for others, in competition with the Company within one (1) year prior to that time, a customer 100 miles of the home office of the Company (including or its subsidiaries having a permanent and known facility wherein the respective subsidiaries thereof) for the purpose of soliciting or selling products or services in direct competition with the Company; or
(iv) call upon any prospective acquisition candidate, on Employee's own behalf or on behalf of any competitor, which candidate was, to Employee's actual knowledge after due inquiry, either called upon by Employer or the Company (including the respective subsidiaries thereof) or for which Employer or the Company made an acquisition analysis for the purpose of acquiring such entity or all or substantially all of such entity's assets. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Employee from acquiring as a passive investment not more than two percent (2%) of the capital stock of a competing business the stock of which is traded on a national securities exchange or on an over-the -counter or similar markethas served.
(b) Because These covenants on the part of the difficulty Employee shall be construed as an agreement independent of measuring economic losses to Employer any other provision of this Agreement, and the existence of any claim or the Company as a result cause of a breach action of the foregoing Employee against the Company, whether predicated on this Agreement or otherwise, shall not preclude the Company's enforcement of this covenant, and because of the immediate and irreparable damage that could be caused to Employer or the Company for which they would have no other adequate remedy, Employee agrees that the foregoing covenant may be enforced by Employer or the Company in . In the event of a breach or threatened breach by Employeethe Employee of his obligations under this Section 3, by injunctions, restraining orders and other appropriate equitable relief.
(c) It is agreed by the parties Employee acknowledges that the foregoing covenants in this paragraph 3 impose a reasonable restraint on Company will not have an adequate remedy at law and shall be entitled to such equitable and injunctive relief as may be available to restrain the Employee in light from the violation of the activities and business of provisions hereof. Nothing herein shall be construed as prohibiting the Company (from pursuing any other remedies available for such breach or threatened breach, including the Company's subsidiaries) on recovery of damages from the date of the execution of this Agreement and the current plans of the Company (including the Company's subsidiaries); but it is also the intent of the Company and Employee that such covenants be construed and enforced in accordance with the changing activities, business and locations of the Company (including the Company's subsidiaries) throughout the term of this covenant, whether before or after the date of termination of the employment of Employee. For example, if, during the term of this Agreement, the Company (including the Company's subsidiaries) engages in new and different activities, enters a new business or establishes new locations for its current activities or business in addition to or other than the activities or business enumerated under the Recitals above or the locations currently established therefor, then Employee will be precluded from soliciting the customers or Employees of such new activities or business or from such new location and from directly competing with such new business within 100 miles of its then-established operating location(s) through the term of this covenant. It is further agreed by the parties hereto that, in the event that Employee shall cease to be employed hereunder, and shall enter into a business or pursue other activities not in competition with the Company (including the Company's subsidiaries), or similar activities or business in locations the operation of which, under such circumstances, does not violate clause (i) of paragraph 3(a), Employee shall not be chargeable with a violation of this paragraph 3 if the Company (including the Company's subsidiaries) shall thereafter enter the same, similar or a competitive (i) business, (ii) course of activities or (iii) location, as applicable.
(d) The covenants in this paragraph Section 3 are severable and separate, and the unenforceability of any specific covenant shall not affect the provisions of any other covenant. Moreover, in the event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth herein are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which the court deems reasonable, reasonable and this the Agreement shall thereby be reformed.
(e) All of the covenants set forth in this paragraph Section 3 shall be construed as an agreement independent of any other provision in of this Agreement, and the existence of any claim or cause of action of the Employee against Employer or the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Employer or the Company of such covenants. It is specifically agreed by the parties that the two-year period of two (2) years following termination of employment stated at the beginning of this paragraph Section 3, during which the agreements and covenants of the Employee made in this paragraph 3 contained herein shall be effective, shall be computed by excluding from such computation any time during which the Employee is in violation of any provision of this paragraph 3Section 3 and any time during which there is pending in any court of competent jurisdiction any action (including any appeal from any final judgment) brought by any person, whether or not a party to this Agreement, in which action, the Company seeks to enforce the agreements and covenants of the Employee or in which any person contests the validity of such agreement and covenants or their enforceability or seeks to avoid their performance or enforcement.
Appears in 1 contract
Samples: Employment Agreement (Allwaste Inc)
Noncompetition Agreement. (a) Employee shall notExcept as otherwise approved in advance and in writing by CMS Energy, during the term of his employment hereunder, be engaged in any other business activity pursued for gain, profit or other pecuniary advantage if such activity interferes with Employee's duties and responsibilities hereunder. The foregoing limitations shall each Management Stockholder severally agrees not be construed as prohibiting Employee from making personal investments in such form or manner as will neither require his services in the operation or affairs of the companies or enterprises in which such investments are made nor violate the terms of this paragraph 3. Employee will not, during the period of his employment by or with Employer, and for a period of two (2) years immediately following the termination of his employment under this Agreement, except as provided belowto, directly or indirectly, for himself himself, or through, on behalf of of, or in conjunction with any other person, personsfirm, companycorporation, partnership, corporation business or business of whatever nature:
other legal entity (i) engage, whether as an employer, employee, partner, officer, director, shareholderagent, ownerholder of a controlling interest, partner, joint venturer, or in a managerial capacity, whether as an employee, independent contractorcreditor, consultant or advisorotherwise), (i) during the period commencing on the Effective Date and ending on the date which is three (3) years after the Effective Date, own, maintain, operate, control, be employed by, have any interest in, perform consulting services for or as a sales representative, otherwise engage in any business or enterprise which is in direct competition with Employer or similar to or the Company same as the Terra Business (a "Competing Business") with respect to its activities in the Michigan Devonian Antrim Shale formation within 100 miles of where the Company or any of its subsidiaries conduct business, including any territory serviced by the Company or any of such subsidiaries territories designated in Exhibit A attached hereto (the "TERRITORYTerritory");
; provided, however, that nothing in this clause (i) shall prevent any Management Stockholder from continuing to engage in such business with respect to the Purchased Assets or other assets owned by such Management Stockholder continuously from June 1, 1995 through the Effective Time, and provided, further, that nothing in this clause (i) shall prevent any Management Stockholder from being employed by or performing consulting services for a Competing Business doing business within the Territory so long as the services performed by such Management Stockholder for such Competing Business relate solely and exclusively to projects or activities of such Competing Business which are located exclusively outside the Territory; and provided, further, that nothing in this clause (i) shall prevent any Management Stockholder from acquiring mineral interests within the Territory if, in the case of each such interest, it is subject to an oil and gas lease that has a remaining term of at least two (2) years or that is held by production at the time of such acquisition, or (ii) call upon any person who is, at that time, an employee of Employer or during the Company (including period commencing on the respective subsidiaries thereof) in a sales or managerial capacity for Effective Date and ending on the purpose or with the intent of enticing such employee away from or out of the employ of Employer or the Company (including the respective subsidiaries thereof);
(iii) call upon any person or entity date which is, at that time, or which has been, within is one (1) year prior after the Effective Date, induce or attempt to that timepersuade any employee, a agent or customer of the Company (including the respective subsidiaries thereof) for the purpose of soliciting or selling products co-venturer with Terra or services in direct competition with the Company; or
(iv) call upon any prospective acquisition candidate, on Employee's own behalf or on behalf of any competitor, which candidate was, to Employee's actual knowledge after due inquiry, either called upon by Employer Subsidiary or the Company Terra Business to terminate his or her employment, agency or business relationship with Terra, or employ, hire or engage any such employee; and provided, however, that nothing in this clause (including ii) shall prevent any Management Stockholder from inviting co-venturers with Terra to participate as co-venturers with any such Management Stockholder in projects or activities which are located exclusively outside the respective subsidiaries thereof) or for which Employer or the Company made an acquisition analysis for the purpose of acquiring such entity or all or substantially all of such entity's assets. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Employee from acquiring as a passive investment not more than two percent (2%) of the capital stock of a competing business the stock of which is traded on a national securities exchange or on an over-the -counter or similar marketTerritory.
(b) Because During the period commencing on the Effective Date and ending on the date which is fifteen (15) years after the Effective Date, each Management Stockholder further severally agrees not to divulge or use, in each case to the detriment of the difficulty Terra Business in the Territory, any confidential information or trade secrets of measuring economic losses to Employer CMS Energy, Terra or the Company Terra Business or any subsidiary or affiliate thereof, including personnel information, secret processes, know-how, customer lists, formulas or other technical data, except as a result may be required by law, provided, however, that this prohibition shall not apply to any information which, through no improper action of a any Management Stockholder, is publicly available or generally known in the industry; and provided, further, that beginning with the third anniversary of the Effective Date this Section 2(b) shall apply only to geological and geophysical data in documentary form owned by Terra at the Effective Date that is not: (i) in the public domain now or hereafter, or (ii) acquired from sources other than Terra, and Terra's sole remedy for breach of the foregoing covenant, and because of the immediate and irreparable damage that could obligation set forth in this proviso after such third anniversary shall be caused to Employer or the Company for which they would have no other adequate remedy, Employee agrees that the foregoing covenant may be enforced by Employer or the Company in the event of breach or threatened breach by Employee, by injunctions, restraining orders and other appropriate equitable injunctive relief.
(c) It is agreed by To the parties extent necessary to satisfy the laws of any state, including the State of Michigan, each Management Stockholder agrees that the foregoing covenants any geographical, temporal or other restriction set forth in this paragraph 3 impose a reasonable restraint on Employee in light of Section 2 can and should, if necessary, be judicially modified to the activities and business of the Company (including the Company's subsidiaries) on the date of the execution of this Agreement and the current plans of the Company (including the Company's subsidiaries); but extent necessary to make it is also the intent of the Company and Employee that such covenants be construed enforceable and enforced in accordance with the changing activities, business and locations of the Company (including the Company's subsidiaries) throughout the term of this covenant, whether before or after the date of termination of the employment of Employee. For example, if, during the term of this Agreement, the Company (including the Company's subsidiaries) engages in new and different activities, enters a new business or establishes new locations for its current activities or business in addition to or other than the activities or business enumerated under the Recitals above or the locations currently established therefor, then Employee will be precluded from soliciting the customers or Employees of such new activities or business or from such new location and from directly competing with such new business within 100 miles of its then-established operating location(s) through the term of this covenant. It is further agreed by the parties hereto that, in the event that Employee shall cease to be employed hereunder, and shall enter into a business or pursue other activities not in competition with the Company (including the Company's subsidiaries), or similar activities or business in locations the operation of which, under such circumstances, does not violate clause (i) of paragraph 3(a), Employee shall not be chargeable with a violation of this paragraph 3 if the Company (including the Company's subsidiaries) shall thereafter enter the same, similar or a competitive (i) business, (ii) course of activities or (iii) location, as applicablemodified.
(d) The covenants in this paragraph 3 are severable and separate, and It is agreed between the unenforceability parties that CMS Energy would be irreparably damaged by reason of any specific covenant shall not affect violation of the provisions of this Section 2, and that any remedy at law for a breach of such provision would be inadequate. Therefore, CMS Energy shall be entitled to seek and obtain injunctive or other covenantequitable relief (including, but not limited to, a temporary restraining order, a temporary injunction or a permanent injunction) against any Management Stockholder, his agents, assigns or successors for a breach or threatened breach of such provisions and without the necessity of proving actual monetary loss. Moreover, in the event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth herein are unreasonable, then it It is the intention of expressly understood among the parties that such restrictions this injunctive or other equitable relief shall not be enforced to CMS Energy's exclusive remedy for any breach of this Section 2, except as otherwise provided in the fullest extent which the court deems reasonablelast proviso of Section 2(b), and this Agreement CMS Energy shall thereby be reformedentitled to seek any other relief or remedy which it may have by contract, statute, law or otherwise for any breach hereof, and it is agreed that CMS Energy shall also be entitled to recover its attorneys' fees and expenses in any successful action or suit against any Management Stockholder relating to any such breach.
(e) All Each Management Stockholder warrants and represents that he:
(i) is familiar with covenants not to compete;
(ii) has discussed the provisions of the covenant not to compete contained herein with his attorneys and has concluded that such provisions (including, without limitation, the right to equitable relief and the length of time and size of area provided for herein) are fair, reasonable and just under the circumstances; and
(iii) is fully aware of the obligations, limitations and liabilities included in the covenant not to compete contained in this Agreement.
(f) In consideration of the covenants of the Management Stockholders contained in this paragraph 3 Section 2, CMS Energy shall pay to the respective Management Stockholders an aggregate of the number of shares of CMS Common Stock, rounded to the nearest millionth of a share, determined by dividing (i) the difference between (A) the Aggregate Consideration and (B) $57,106,940 by (ii) the Average Price, and such consideration shall be construed allocated among the Management Stockholders as an agreement independent set forth in Exhibit B attached hereto; provided, however, that CMS Energy shall satisfy such obligation by delivering cash in lieu of any other provision fractional shares pursuant to Section 2.6 of the Merger Agreement, by check or wire transfer of immediately available funds to the account or accounts designated by the respective Management Stockholders in a notice to CMS Energy, and one or more certificates (to the respective Management Stockholders) representing the aggregate number of whole CMS Common Shares to which the respective Management Stockholders are entitled pursuant hereto.
(g) Any certificates representing CMS Common Shares or cash in lieu of fractional shares or interests deliverable pursuant hereto shall be deliverable five (5) business days after the final determination of the difference between the amounts calculated pursuant to clauses (A) and (B) of Section 2.2(a) of the Merger Agreement, provided, however, that notwithstanding the foregoing, as respects certificates representing CMS Common Shares otherwise deliverable in accordance with this sentence pursuant to this Agreement, not less than two business days prior to the Effective Date CMS Energy will estimate, in good faith, the number of CMS Common Shares deliverable under this Agreement and the existence allocation thereof to each Management Stockholder and, at the Effective Time, CMS Energy shall deliver an aggregate number of any claim CMS Common Shares (allocated to each Management Stockholder in accordance with part I of Exhibit B attached hereto) equal to eighty percent (80%) of the estimated number (rounded to the nearest whole share) of CMS Common Shares deliverable by CMS Energy or cause equal to such higher percentage of action the estimated number of Employee against Employer or CMS Common Shares deliverable by CMS Energy as CMS Energy may elect (the Companyaggregate of all such Shares so delivered being the "Delivered Share Number"). Following the Effective Time, whether predicated on CMS Energy and the Stockholders' Representative will determine the actual number of CMS Common Shares (and cash in lieu of fractional shares) deliverable under this Agreement or otherwise(the "Actual Share Number") and the allocation thereof to each Management Stockholder. Disputes regarding the Actual Share Number shall be resolved as soon as practicable, but in any event disputes regarding the Actual Share Number that are not resolved by the parties within five (5) business days after the sixtieth (60th) day after the Effective Time shall not constitute a defense be submitted to an arbitrator who is acceptable to both parties, and whose decision shall be final and binding with respect to the enforcement Actual Share Number. The fees and expenses of the arbitrator (if any) incurred in connection with the determination of the Actual Share Number shall be shared equally by Employer CMS Energy on the one hand and the Management Stockholders on the other hand. If the Actual Share Number is greater than the Delivered Share Number, then CMS Energy shall deliver to the respective Management Stockholders entitled thereto an aggregate number of whole CMS Common Shares equal to such excess (allocated in accordance with the percentages set forth in part II of Exhibit B attached hereto), together with an amount equal to all dividends and distributions which became payable to holders of record on or after the Company Effective Date in respect of such covenantsnumber of CMS Common Shares. It If the Actual Share Number is specifically agreed that less than the period Delivered Share Number, then the respective Management Stockholders shall deliver to CMS Energy within two business days following the determination of two the Actual Share Number an aggregate number of whole CMS Common Shares equal to such deficiency (2allocated in accordance with the percentages set forth in part II of Exhibit B attached hereto), together with an amount equal to all dividends and distributions which became payable to holders of record on or after the Effective Date in respect of such number of CMS Common Shares.
(h) years following termination Each of employment stated at the beginning Management Stockholders agrees to report the fair market value of the CMS Common Shares delivered pursuant to this paragraph 3Agreement as ordinary income in his federal, during state and local income tax returns for the taxable year in which the agreements and covenants of Employee made in this paragraph 3 shall be effective, shall be computed by excluding from such computation any time during which Employee is in violation of any provision of this paragraph 3Effective Date occurs.
Appears in 1 contract
Noncompetition Agreement. (a) A. The Employee shall not, during acknowledges that the term of his employment hereunder, be engaged in any payments and other business activity pursued for gain, profit or other pecuniary advantage if such activity interferes with Employee's duties and responsibilities hereunder. The foregoing limitations shall not be construed as prohibiting Employee from making personal investments in such form or manner as will neither require his services in the operation or affairs of the companies or enterprises in which such investments are made nor violate the terms of this paragraph 3. Employee will not, during the period of his employment by or with Employer, and for a period of two (2) years immediately following the termination of his employment benefits provided to him under this Agreement, except as provided below, directly or indirectly, Agreement constitute good and valuable consideration for himself or on behalf of or in conjunction with any other person, persons, company, partnership, corporation or business of whatever nature:
(i) engage, as an officer, director, shareholder, owner, partner, joint venturer, or in a managerial capacity, whether as an employee, independent contractor, consultant or advisor, or as a sales representative, in any business in direct his non-competition with Employer or the Company within 100 miles of where the Company or any of its subsidiaries conduct business, including any territory serviced covenants and that monetary damages for losses occasioned by the Company or any of such subsidiaries (the "TERRITORY");
(ii) call upon any person who is, at that time, an employee of Employer or the Company (including the respective subsidiaries thereof) in a sales or managerial capacity for the purpose or with the intent of enticing such employee away from or out of the employ of Employer or the Company (including the respective subsidiaries thereof);
(iii) call upon any person or entity which is, at that time, or which has been, within one (1) year prior his failure to that time, a customer of the Company (including the respective subsidiaries thereof) for the purpose of soliciting or selling products or services in direct competition with the Company; or
(iv) call upon any prospective acquisition candidate, on Employee's own behalf or on behalf of any competitor, which candidate was, abide by these covenants would be substantial and extremely difficult to Employee's actual knowledge after due inquiry, either called upon by Employer or the Company (including the respective subsidiaries thereof) or for which Employer or the Company made an acquisition analysis for the purpose of acquiring such entity or all or substantially all of such entity's assetsmeasure. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Employee from acquiring as a passive investment not more than two percent (2%) of the capital stock of a competing business the stock of which is traded on a national securities exchange or on an over-the -counter or similar market.
(b) Because of the difficulty of measuring economic losses damages to Employer or the Company as a result of a breach violations of the foregoing covenantthis Section, and because of the immediate and irreparable damage that could would be caused to Employer or the Company for which they would have no other adequate remedyCompany, in the event of a breach by the Employee of the provisions of this Section, the Employee agrees that the foregoing covenant may be enforced Company and its affiliates may, in addition to any other available remedy, enforce the provisions of the Section by Employer all equitable relief, including injunctions and restraining orders. The Employee acknowledges that payments contemplated herein are contingent upon compliance with this Section. Employee agrees that if he/she violates or threatens to violate this Section, the Company in may immediately discontinue or recover the event of breach or threatened breach by Employee, by injunctions, restraining orders and other appropriate equitable reliefSeparation Payments paid to Employee under this Agreement.
(c) It is agreed by B. The Employee agrees that for a period twenty-four months from the parties that the foregoing covenants in this paragraph 3 impose a reasonable restraint on Employee in light of the activities and business of the Company (including the Company's subsidiaries) on the effective date of the execution of this Agreement and the current plans of the Company (including the Company's subsidiaries); but it is also the intent of the Company and Employee that such covenants be construed and enforced in accordance with the changing activities, business and locations of the Company (including the Company's subsidiaries) throughout the term of this covenant, whether before or after the date of termination of the employment of Employee. For example, if, during the term of this Agreement, the Company Employee will not in any manner directly or indirectly: (including the Companya) disclose or divulge to any person, entity, firm, company or employer, or use for Emplolyee's subsidiaries) engages in new and different activities, enters a new business or establishes new locations for its current activities or business in addition to or other than the activities or business enumerated under the Recitals above own benefit or the locations currently established thereforbenefit of any other person, then Employee will be precluded from soliciting the customers entity, firm, company or Employees of such new activities employer directly or business or from such new location and from directly competing with such new business within 100 miles of its then-established operating location(s) through the term of this covenant. It is further agreed by the parties hereto that, in the event that Employee shall cease to be employed hereunder, and shall enter into a business or pursue other activities not indirectly in competition with Employer, any knowledge, information, business methods, techniques or data of Employer; (b) solicit, divert, take away or interfere with any of the Company accounts, trade, business patronage, employees or contractual arrangements of Employer; or (including the Company's subsidiaries)c) compete with Employer, or similar activities enter into any contractual arrangements either individually or business as equity-holder in locations any entity, for the operation provision of whichair or ground ambulance services, under such circumstances, does not violate clause medical transportation services or managed medical transportation services within one hundred (i100) miles of paragraph 3(a), Employee shall not be chargeable with a violation any client of Employer.
C. The covenants of this paragraph 3 if the Company (including the Company's subsidiaries) shall thereafter enter the same, similar or a competitive (i) business, (ii) course of activities or (iii) location, as applicable.
(d) The covenants in this paragraph 3 Section are severable and separate, and the unenforceability of any specific provision or covenant shall not affect the provisions enforceability of any other covenant. Moreover, in the event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth herein are unreasonable, then and it is the intention of the parties that such restrictions the provisions hereunder be enforced to the fullest extent which the that a court deems may deem reasonable, and this Agreement shall thereby be reformed.
(e) All of the covenants in this paragraph 3 shall be construed as an agreement independent of any other provision in this Agreement, and the existence of any claim or cause of action of Employee against Employer or the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Employer or the Company of such covenants. It is further specifically agreed that that, with respect to any period in which the Employee is in violation of Section, the non-competition period referred to herein shall be extended until such time as the Employee returns to compliance with Section plus the length of time during the period of two (2) years following termination of employment stated at the beginning of this paragraph 3, during in which the agreements and covenants of Employee made in this paragraph 3 shall be effective, shall be computed by excluding from such computation any time during which Employee is was in violation of any provision of this paragraph 3Section.
D. The Company and Employee acknowledge that Colorado law, as set forth in Colorado Revised Statutes § 8-2-113(2), voids covenants not to compete unless such covenant qualifies for at least one enumerated exception. The Company and the Employee agree, and therefore waive any argument to the contrary, that the restrictions set forth in this Section are legal and enforceable under Colorado law because such restrictions meet two such exceptions: (i) this Agreement is a "contract for the protection of trade secrets" and (ii) Employee is an "executive." C.R.S. § 8-2-113(2)(b) & (d).
Appears in 1 contract
Samples: Separation Agreement (Emergency Medical Services CORP)
Noncompetition Agreement. (a) The Employee will be a full-time employee of the Company and shall not, during devote all of her business time to the term performance of his employment her duties hereunder, be engaged . Employee acknowledges that in any other business activity pursued for gain, profit or other pecuniary advantage if such activity interferes with Employee's the course of the performance of her duties and responsibilities hereunder. The foregoing limitations shall as a necessary incident thereof, the Company may make available or impart to Employee certain financial and business information concerning the business, affairs, plans, and programs of the Company which is proprietary to the Company and was not be construed as prohibiting obtained by the Employee from making personal investments in such form or manner as will neither require his services in sources other than the operation or affairs of Company (the companies or enterprises in which such investments are made nor violate "Proprietary Information").
(b) For the terms of this paragraph 3. Employee will not, during the period of his employment by or with Employer, Term hereof and for a period of two one (21) years immediately following year after the earlier of expiration of such Term or the termination of his Employee's employment under this Agreementfor cause (as defined in Section 3(c) hereof), except as provided belowEmployee shall not (i) in business or otherwise use for herself or disclose to any other person any Proprietary Information concerning the Company or any information with respect to the business of the Company, for any purpose whatsoever; (ii) directly or indirectly, for himself individually or on behalf with others, solicit or attempt to solicit any employees, or any representatives or agents of or the Company, in conjunction connection with any other personbusiness which is the same as or similar to or competitive with the Business of the Company, persons, company, partnership, corporation which representative or business agent is known by Employee to be a representative or agent of whatever nature:the Company and engaged in the Business of the Company.
(ic) engageDuring the Term hereof Employee shall not, in the States of New York or New Jersey, serve as or become an officer, director, shareholder, ownerconsultant, partner, joint venturerowner, principal, or in a managerial capacityotherwise, whether as an employeedirectly or indirectly, independent contractor, consultant or advisor, or as a sales representative, in enter into any business in direct competition which is the same as or similar to or competitive with Employer the business of the Company or service customers of the Company within 100 miles of where the Company or geographic areas indicated in this subsection.
(d) Employee further agrees that she will not use any of its subsidiaries conduct business, including the Proprietary Information in connection with the purchase or sale of any territory serviced by securities of the Company or any Company. The provisions of such subsidiaries (this Section 4 shall survive the "TERRITORY");termination of this Agreement.
(iie) call upon any person who is, at that time, an employee of Employer or Notwithstanding the Company (including the respective subsidiaries thereof) in a sales or managerial capacity for the purpose or with the intent of enticing such employee away from or out of the employ of Employer or the Company (including the respective subsidiaries thereof);
(iii) call upon any person or entity which is, at that time, or which has been, within aforementioned one (1) year prior to that timeperiod expressed in clauses (b) and (c) above, a customer of in the event the Employee is terminated by the Company without "Cause" (including as defined in Section 3(c) hereof) then the respective subsidiaries thereof) for the purpose period of soliciting or selling products or services in direct non-competition with the Company; orshall be void and of no effect.
(ivf) call upon any prospective acquisition candidate, on Employee's own behalf or on behalf of any competitor, which candidate was, to Employee's actual knowledge after due inquiry, either called upon by Employer or the Company (including the respective subsidiaries thereof) or for which Employer or the Company made an acquisition analysis for the purpose of acquiring such entity or all or substantially all of such entity's assets. Notwithstanding the aboveforegoing, the foregoing covenant however, nothing contained in this Agreement shall not be deemed to prohibit Employee from acquiring purchasing and holding as a passive an investment not more than two percent (2%) 5% of any class of the capital stock of a competing business the stock of which is issued and outstanding and publicly traded (on a recognized national or regional securities exchange or on an in the over-the -counter or similar the-counter market.
(b) Because security of the difficulty of measuring economic losses to Employer or the Company as a result of a breach of the foregoing covenantany corporation, and because of the immediate and irreparable damage that could be caused to Employer or the Company for which they would have no other adequate remedy, Employee agrees that the foregoing covenant may be enforced by Employer or the Company in the event of breach or threatened breach by Employee, by injunctions, restraining orders and other appropriate equitable relief.
(c) It is agreed by the parties that the foregoing covenants in this paragraph 3 impose a reasonable restraint on Employee in light of the activities and business of the Company (including the Company's subsidiaries) on the date of the execution of this Agreement and the current plans of the Company (including the Company's subsidiaries); but it is also the intent of the Company and Employee that such covenants be construed and enforced in accordance with the changing activities, business and locations of the Company (including the Company's subsidiaries) throughout the term of this covenant, whether before or after the date of termination of the employment of Employee. For example, if, during the term of this Agreement, the Company (including the Company's subsidiaries) engages in new and different activities, enters a new business or establishes new locations for its current activities or business in addition to partnership or other than the activities or business enumerated under the Recitals above or the locations currently established therefor, then Employee will be precluded from soliciting the customers or Employees of such new activities or business or from such new location and from directly competing with such new business within 100 miles of its then-established operating location(s) through the term of this covenant. It is further agreed by the parties hereto that, in the event entity that Employee shall cease to be employed hereunder, and shall enter into conducts a business or pursue other activities not in competition with the Company (including the Company's subsidiaries), and of which she is not an employee or similar activities or business in locations the operation of which, under such circumstances, does not violate clause (i) of paragraph 3(a), Employee shall not be chargeable with a violation of this paragraph 3 if the Company (including the Company's subsidiaries) shall thereafter enter the same, similar or a competitive (i) business, (ii) course of activities or (iii) location, as applicabledirector.
(d) The covenants in this paragraph 3 are severable and separate, and the unenforceability of any specific covenant shall not affect the provisions of any other covenant. Moreover, in the event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth herein are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which the court deems reasonable, and this Agreement shall thereby be reformed.
(e) All of the covenants in this paragraph 3 shall be construed as an agreement independent of any other provision in this Agreement, and the existence of any claim or cause of action of Employee against Employer or the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Employer or the Company of such covenants. It is specifically agreed that the period of two (2) years following termination of employment stated at the beginning of this paragraph 3, during which the agreements and covenants of Employee made in this paragraph 3 shall be effective, shall be computed by excluding from such computation any time during which Employee is in violation of any provision of this paragraph 3.
Appears in 1 contract
Noncompetition Agreement. Employee acknowledges and agrees that information, including the Confidential Information, Employee has acquired will enable Employee to irreparably injure the Company if Employee should engage in competition during the period beginning from the Resignation Date and extending through the first anniversary thereof (athe “Non-Compete Period”). Accordingly, as a material and substantial part of the agreements set forth herein, and particularly in consideration of the severance payments, the waiver or removal of selling restrictions or forfeiture provisions with respect to, or vesting of, equity-based awards, the provision of Confidential Information and the other benefits provided to Employee pursuant to Section 2 hereof, Employee hereby agrees that the following covenants are reasonable and necessary covenants for the protection of the value of the agreements of Employee contained herein:
(i) During the Non-Compete Period, Employee shall not, during the term of his employment hereunder, be engaged in any other business activity pursued for gain, profit or other pecuniary advantage if such activity interferes with Employee's duties and responsibilities hereunder. The foregoing limitations shall not be construed as prohibiting Employee from making personal investments in such form or manner as will neither require his services in the operation or affairs of the companies or enterprises in which such investments are made nor violate the terms of this paragraph 3. Employee will not, during the period of his employment by or with Employer, and for a period of two (2) years immediately following the termination of his employment under this Agreement, except as provided below, directly or indirectly, for himself or without the prior written approval of the Company’s Chief Executive Officer (which approval shall not be unreasonably withheld), on behalf of the Company, act in any capacity for, be employed by, provide services to, or in conjunction contract with any other personcompany or entity engaged in Competing Services (a “Competitive Entity”), personsor acquire any interest of any type in any Competitive Entity; provided, companyhowever, partnershipthat the foregoing shall not prohibit Employee from acquiring, corporation or business of whatever nature:
(i) engage, solely as an officerinvestment and through market purchases, directorsecurities of any Competitive Entity which are registered under Section 12(b) or 12(g) of the Securities and Exchange Act of 1934 and which are publicly traded, shareholder, owner, partner, joint venturer, or in a managerial capacity, whether so long as an employee, independent contractor, consultant or advisor, or as a sales representative, in Employee is not part of any business in direct competition with Employer or the Company within 100 miles control group of where the Company or any of its subsidiaries conduct businesssuch Competitive Entity and such securities, including any territory serviced by the Company securities issuable on conversion or any of such subsidiaries (the "TERRITORY");
(ii) call upon any person who is, at that time, an employee of Employer or the Company (including the respective subsidiaries thereof) in a sales or managerial capacity for the purpose or with the intent of enticing such employee away from or out of the employ of Employer or the Company (including the respective subsidiaries thereof);
(iii) call upon any person or entity which is, at that time, or which has been, within one (1) year prior to that time, a customer of the Company (including the respective subsidiaries thereof) for the purpose of soliciting or selling products or services in direct competition with the Company; or
(iv) call upon any prospective acquisition candidate, on Employee's own behalf or on behalf exchange of any competitorconvertible or exchangeable securities, which candidate was, to Employee's actual knowledge after due inquiry, either called upon by Employer or the Company beneficially owned (including the respective subsidiaries thereof) or for which Employer or the Company made an acquisition analysis for the purpose of acquiring such entity or all or substantially all of such entity's assets. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Employee from acquiring as a passive investment not more than two percent (2%) of the capital stock of a competing business the stock of which is traded on a national securities exchange or on an over-the -counter or similar market.
(b) Because of the difficulty of measuring economic losses to Employer or the Company as a result of a breach of the foregoing covenant, and because of the immediate and irreparable damage that could be caused to Employer or the Company for which they would have no other adequate remedy, Employee agrees that the foregoing covenant may be enforced by Employer or the Company in the event of breach or threatened breach by Employee, by injunctions, restraining orders and other appropriate equitable relief.
(c) It is agreed by the parties that the foregoing covenants in this paragraph 3 impose a reasonable restraint on Employee in light of the activities and business of the Company (including the Company's subsidiaries) on the date of the execution of this Agreement and the current plans of the Company (including the Company's subsidiaries); but it is also the intent of the Company and Employee that such covenants be construed and enforced determined in accordance with Rule 13d-3 under the changing activities, business and locations Securities Exchange Act of 1934) by Employee do not constitute more than one percent of the Company (including the Company's subsidiaries) throughout the term outstanding voting power of this covenant, whether before or after the date of termination of the employment of Employeethat entity. For example, if, during the term purposes of this Agreement, the phrase “Competing Services” shall mean any services that are the same as or similar to the services currently being provided or offered by any of the Company (including the Company's subsidiaries) engages in new and different activities, enters a new business or establishes new locations for its current activities or business in addition to or other than the activities or business enumerated under the Recitals above or the locations currently established therefor, then Employee will be precluded from soliciting the customers or Employees of such new activities or business or from such new location and from directly competing with such new business within 100 miles of its then-established operating location(s) through the term of this covenant. It is further agreed by the parties hereto thatEntities, in any case in any of the event that Employee shall cease to be employed hereunder, oil and shall enter into a business or pursue other activities not gas producing regions of the world in competition with which the Company Entities operate. Competing Services include engineering, procurement, construction and installation services and project management services for offshore oil and gas field development, including any such services related to fixed or floating production facilities, pipelines or subsea systems.
(including ii) During the Company's subsidiaries), or similar activities or business in locations the operation of which, under such circumstances, does not violate clause (i) of paragraph 3(a)Non-Compete Period, Employee shall not be chargeable with a violation not, directly or indirectly, solicit any Company Entity’s Protected Customers for the purpose of this paragraph 3 if the Company (including the Company's subsidiaries) shall thereafter enter the same, similar or a competitive (i) business, (ii) course of activities or (iii) location, as applicable.
(d) The covenants engaging in this paragraph 3 are severable and separate, and the unenforceability of any specific covenant shall not affect the provisions of any other covenant. Moreover, in the event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth herein are unreasonable, then it business which is the intention of the parties that such restrictions be enforced same as or similar to the fullest extent business in which a Company Entity is engaged. The phrase “Protected Customers” means all persons or entities to whom a Company Entity has sold, or proposed the court deems reasonablesale of, and this Agreement shall thereby be reformed.
(e) All of the covenants in this paragraph 3 shall be construed as an agreement independent of any other provision in this Agreement, and the existence of any claim product or cause of action of Employee against Employer or the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Employer or the Company of such covenants. It is specifically agreed that service within the period of two three (23) years following termination of employment stated at immediately prior to the beginning of this paragraph 3, during which the agreements and covenants of Employee made in this paragraph 3 shall be effective, shall be computed by excluding from such computation any time during which Employee is in violation of any provision of this paragraph 3Resignation Date.
Appears in 1 contract
Noncompetition Agreement. (a) Employee shall not, during the term of his employment hereunder, be engaged in any other business activity pursued for gain, profit or other pecuniary advantage if such activity interferes with Employee's duties and responsibilities hereunder. The foregoing limitations shall not be construed as prohibiting Employee from making personal investments in such form or manner as will neither require his services in the operation or affairs In consideration of the companies or enterprises in which such investments are made nor violate the terms of this paragraph 3. foregoing, Employee will nothereby agrees that, during the period commencing as of his employment by the last day of the Employment Term (the "Termination Date") and ending as of the first anniversary of the Termination Date, in the areas within a 200 mile radius of (i) Houston, Texas, (ii) New Orleans, Louisiana, or with Employer(iii) any other city in which the Company has an office on the Termination Date, and for a period of two businesses related to the oil and gas industry (2the "Relevant Geographic Area") years immediately following the termination of his Employee will not (a) accept employment under this Agreement, except as provided below, directly or indirectly, for himself or on behalf of or in conjunction with render service to any other person, persons, company, partnership, corporation or business of whatever nature:
(i) engage, as an officer, director, shareholder, owner, partner, joint venturer, or person that is engaged in a managerial capacity, whether as an employee, independent contractor, consultant or advisor, or as a sales representative, business directly competitive with the business then engaged in any business in direct competition with Employer or the Company within 100 miles of where by the Company or any of its subsidiaries conduct businessaffiliates, including (b) enter into or take part in or lend Employee's name as principal, director, officer, executive, independent contractor, partner or advisor, or accept employment for any territory serviced by purpose that would be competitive with the business of the Company or any of such subsidiaries its affiliates or (c) ending as of the "TERRITORY");
(ii) call upon second anniversary of the Termination Date, directly or indirectly, solicit or induce, or attempt to solicit or induce, any person who is, at that time, an employee of Employer or to leave the Company for any reason whatsoever (including the respective subsidiaries thereof) in a sales or managerial capacity for the purpose or with the intent of enticing such employee away from or out of the employ of Employer or the Company (including the respective subsidiaries thereof);
(iii) call upon any person or entity which is, at that time, or which has been, within one (1) year prior to that time, a customer of the Company (including the respective subsidiaries thereof) for the purpose of soliciting or selling products or services in direct competition with the Company; or
(iv) call upon any prospective acquisition candidate, on Employee's own behalf or on behalf of any competitor, which candidate was, to Employee's actual knowledge after due inquiry, either called upon by Employer or the Company (including the respective subsidiaries thereof) or for which Employer or the Company made an acquisition analysis for the purpose of acquiring such entity or all or substantially all of such entity's assets. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Employee from acquiring as a passive investment not more than two percent (2%) of the capital stock of a competing business the stock of which is traded on a national securities exchange or on an over-the -counter or similar market.
(b) Because of the difficulty of measuring economic losses to Employer or the Company as a result of a breach of the foregoing covenantactivities are collectively referred to as the "Prohibited Activity"); provided, and because of the immediate and irreparable damage that could be caused to Employer or the Company for which they would have no other adequate remedyhowever, Employee agrees may serve as a director of a business that the foregoing covenant may be enforced by Employer or is competitive with the Company in the Relevant Geographic Area, if Employee and such business agree that Employee cannot and will not act as a director or otherwise advise that business on any matter involving the Relevant Geographic Area. It shall not be considered a violation of this Agreement for Employee to be a passive investor in any enterprise that might be viewed as a competitor of the Company. In addition to all other remedies at law or in equity which the Company may have for breach of a provision of this Paragraph 13, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against Employee prohibiting such breach or attempted or threatened breach by Employeeproving only the existence of such breach or attempted or threatened breach. If the provisions of this Paragraph 13 should ever be deemed to exceed the time, by injunctions, restraining orders and other appropriate equitable relief.
(c) It is agreed geographic or occupational limitations permitted by the parties applicable law, Employee and the Company agree that such provisions shall be and are hereby reformed to the foregoing covenants maximum time, geographic or occupational limitations permitted by the applicable law. Employee acknowledges, agrees and stipulates that: (i) the terms and provisions of this agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Paragraph 13 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ANN. ss.ss. 15.50-15.52, or any suxxxssox xxxvisions; (ii) the consideration provided by the Company under this agreement is not illusory; and (iii) the consideration given by the Company under this agreement gives rise to the Company's interest in restraining and prohibiting Employee from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this paragraph 3 impose Paragraph 13, and Employee's covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Paragraph 13 is designed to enforce Employee's consideration (or return promises). Moreover, Employee agrees and acknowledges that Employee's providing services in the Relevant Geographic Area for a reasonable restraint on Employee in light of the activities and business competitor of the Company (including would be detrimental to the CompanyCompany and, consequently, acknowledges that the geographic and business parameters of Employee's subsidiaries) on agreement not to compete are justified and not overly broad. If the date of the execution of Company initiates a judicial proceeding against Employee to enforce this Agreement Paragraph 13 and the current plans of the Company (including the Company's subsidiaries); but it is also the intent of the Company and Employee that such covenants be construed and enforced does not prevail in accordance with the changing activities, business and locations of the Company (including the Company's subsidiaries) throughout the term of this covenant, whether before whole or after the date of termination of the employment of Employee. For example, if, during the term of this Agreementpart, the Company (including the Companyshall pay Employee's subsidiaries) engages in new and different activities, enters a new business or establishes new locations for its current activities or business in addition to or other than the activities or business enumerated under the Recitals above or the locations currently established therefor, then Employee will be precluded from soliciting the customers or Employees of such new activities or business or from such new location and from directly competing with such new business within 100 miles of its then-established operating location(s) through the term of this covenant. It is further agreed by the parties hereto that, in the event that Employee shall cease to be employed hereunder, and shall enter into a business or pursue other activities not in competition with the Company (including the Companyreasonable attorney's subsidiaries), or similar activities or business in locations the operation of which, under such circumstances, does not violate clause (i) of paragraph 3(a), Employee shall not be chargeable with a violation of this paragraph 3 if the Company (including the Company's subsidiaries) shall thereafter enter the same, similar or a competitive (i) business, (ii) course of activities or (iii) location, as applicablefees.
(d) The covenants in this paragraph 3 are severable and separate, and the unenforceability of any specific covenant shall not affect the provisions of any other covenant. Moreover, in the event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth herein are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which the court deems reasonable, and this Agreement shall thereby be reformed.
(e) All of the covenants in this paragraph 3 shall be construed as an agreement independent of any other provision in this Agreement, and the existence of any claim or cause of action of Employee against Employer or the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Employer or the Company of such covenants. It is specifically agreed that the period of two (2) years following termination of employment stated at the beginning of this paragraph 3, during which the agreements and covenants of Employee made in this paragraph 3 shall be effective, shall be computed by excluding from such computation any time during which Employee is in violation of any provision of this paragraph 3.
Appears in 1 contract
Samples: Employment Agreement (Seitel Inc)
Noncompetition Agreement. (a) Without the prior written consent of Employer, Employee shall not, during the term of his employment hereunder, be engaged in any other business activity pursued for gain, profit or other pecuniary advantage if such activity interferes with Employee's duties and responsibilities hereunder. The foregoing limitations shall not be construed as prohibiting Employee from making personal investments in such form or manner as will neither require his services in the operation or affairs of the companies or enterprises in which such investments are made nor violate the terms of this paragraph 3. Employee will not, during the period of his employment by or with Employer, and for a period or any of two (2) years immediately following the termination of his employment under this Agreement, except as provided belowits affiliates, directly or indirectly, for himself invest (other than investments in publicly-owned companies) or on behalf engage in any business that is competitive with that of Employer or in conjunction any of its affiliates or accept employment with or render services to a competitor of Employer or any of its affiliates as a director, officer, agent, employee or consultant, or solicit or attempt to solicit or accept business that is competitive with any other personbusiness being conducted by Employee or any of its affiliates during Employee's employment under this Agreement from any of the customers or prospective customers of Employer or any of its affiliates, persons, company, partnership, corporation or business take any action inconsistent with the fiduciary relationship of whatever nature:an employee to his employer.
(ib) engageUpon any termination or cessation of Employee's employment with Employer and all of its affiliates for any reason whatsoever, Employee shall not, prior to the date which would have been Employee's termination date, directly or indirectly, either as an officerindividual, director, shareholder, owner, partner, a partner or a joint venturer, or in a managerial any other capacity, whether as an employee, independent contractor, consultant (i) invest (other than investments in publicly-owned companies) or advisor, or as a sales representative, engage in any business that is competitive, within any county, whether or not in direct competition with Oklahoma, in which Employer or the Company within 100 miles of where the Company or any of its subsidiaries conduct business, including any territory serviced by affiliates operates at the Company or any time of such subsidiaries (the "TERRITORY");
(ii) call upon any person who istermination or cessation, at with that time, an employee of Employer or the Company (including the respective subsidiaries thereof) in a sales or managerial capacity for the purpose or with the intent of enticing such employee away from or out of the employ of Employer or the Company (including the respective subsidiaries thereof);
(iii) call upon any person or entity which is, at that time, or which has been, within one (1) year prior to that time, a customer of the Company (including the respective subsidiaries thereof) for the purpose of soliciting or selling products or services in direct competition with the Company; or
(iv) call upon any prospective acquisition candidate, on Employee's own behalf or on behalf of any competitor, which candidate was, to Employee's actual knowledge after due inquiry, either called upon by Employer or the Company (including the respective subsidiaries thereof) or for which Employer or the Company made an acquisition analysis for the purpose of acquiring such entity or all or substantially all of such entity's assets. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Employee from acquiring as a passive investment not more than two percent (2%) of the capital stock of a competing business the stock of which is traded on a national securities exchange or on an over-the -counter or similar market.
(b) Because of the difficulty of measuring economic losses to Employer or the Company as a result of a breach of the foregoing covenant, and because of the immediate and irreparable damage that could be caused to Employer or the Company for which they would have no other adequate remedy, Employee agrees that the foregoing covenant may be enforced by Employer or the Company in the event of breach or threatened breach by Employee, by injunctions, restraining orders and other appropriate equitable relief.
(c) It is agreed by the parties that the foregoing covenants in this paragraph 3 impose a reasonable restraint on Employee in light of the activities and business of the Company (including the Company's subsidiaries) on the date of the execution of this Agreement and the current plans of the Company (including the Company's subsidiaries); but it is also the intent of the Company and Employee that such covenants be construed and enforced in accordance with the changing activities, business and locations of the Company (including the Company's subsidiaries) throughout the term of this covenant, whether before or after the date of termination of the employment of Employee. For example, if, during the term of this Agreement, the Company (including the Company's subsidiaries) engages in new and different activities, enters a new business or establishes new locations for its current activities or business in addition to or other than the activities or business enumerated under the Recitals above or the locations currently established therefor, then Employee will be precluded from soliciting the customers or Employees of such new activities or business or from such new location and from directly competing with such new business within 100 miles of its then-established operating location(s) through the term of this covenant. It is further agreed by the parties hereto that, in the event that Employee shall cease to be employed hereunder, and shall enter into a business or pursue other activities not in competition with the Company (including the Company's subsidiaries), or similar activities or business in locations the operation of which, under such circumstances, does not violate clause (i) of paragraph 3(a), Employee shall not be chargeable with a violation of this paragraph 3 if the Company (including the Company's subsidiaries) shall thereafter enter the same, similar or a competitive (i) businessaffiliates, (ii) course accept employment with or render services to a competitor of activities Employer or its affiliates, within any county, whether or not in Oklahoma, in which Employer or any of its affiliates operates at the time of such termination or cessation, as a director, officer, agent, employee or consultant, or (iii) locationcontact, solicit or attempt to solicit or accept business from any of the customers of Employer or its affiliates, wherever located, as applicable.
of the time of Employee's termination or cessation of employment, whose insurance policies or claims or other contracts or orders are processed or approved of in Lincoln County, Oklahoma, or such other county or counties, whether or not in Oklahoma, in which they may hereafter handle such processing or approval; provided, however, that this subsection (db) The covenants in this paragraph 3 are severable and separate, and the unenforceability of any specific covenant shall not affect apply if Employee is terminated without just cause and ceases to receive the provisions of any other covenant. Moreover, in the event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions compensation set forth herein are unreasonable, then it is the intention in subsection l(a) of the parties that such restrictions be enforced to the fullest extent which the court deems reasonable, and this Agreement shall thereby be reformed.
(e) All of the covenants in this paragraph 3 shall be construed as an agreement independent of any other provision in this Agreement, and the existence of any claim or cause of action of Employee against Employer or the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Employer or the Company of such covenants. It is specifically agreed that the period of two (2) years following termination of employment stated at the beginning of this paragraph 3, during which the agreements and covenants of Employee made in this paragraph 3 shall be effective, shall be computed by excluding from such computation any time during which Employee is in violation of any provision of this paragraph 3.
Appears in 1 contract
Noncompetition Agreement. (a) Employee shall not, during the term of his employment hereunder, be engaged in any other business activity pursued for gain, profit or other pecuniary advantage if such activity interferes with Employee's duties and responsibilities hereunder. The foregoing limitations shall not be construed as prohibiting Employee from making personal investments in such form or manner as will neither require his services in the operation or affairs of the companies or enterprises in which such investments are made nor violate the terms of this paragraph 3. Employee will not, during the period of his employment by or with Employer, and for a period of two (2) years immediately following the termination of his employment under this Agreement, except as provided below, directly or indirectly, for himself or on behalf of or in conjunction with any other person, persons, company, partnership, corporation or business of whatever nature:
(i) engage, as an officer, director, shareholder, owner, partner, joint venturer, or in a managerial capacity, whether as an employee, independent contractor, consultant or advisor, or as a sales representative, in any business in direct competition with Employer or the Company within 100 miles of where the Company or any of its subsidiaries conduct business, including any territory serviced by the Company or any of such subsidiaries (the "TERRITORYTerritory");
(ii) call upon any person who is, at that time, an employee of Employer or the Company (including the respective subsidiaries thereof) in a sales or managerial capacity for the purpose or with the intent of enticing such employee away from or out of the employ of Employer or the Company (including the respective subsidiaries thereof);
(iii) call upon any person or entity which is, at that time, or which has been, within one (1) year prior to that time, a customer of the Company (including the respective subsidiaries thereof) for the purpose of soliciting or selling products or services in direct competition with the Company; or
(iv) call upon any prospective acquisition candidate, on Employee's own behalf or on behalf of any competitor, which candidate was, to Employee's actual knowledge after due inquiry, either called upon by Employer or the Company (including the respective subsidiaries thereof) or for which Employer or the Company made an acquisition analysis for the purpose of acquiring such entity or all or substantially all of such entity's assets. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Employee from acquiring as a passive investment not more than two percent (2%) of the capital stock of a competing business the stock of which is traded on a national securities exchange or on an over-the -counter or similar market.
(b) Because of the difficulty of measuring economic losses to Employer or the Company as a result of a breach of the foregoing covenant, and because of the immediate and irreparable damage that could be caused to Employer or the Company for which they would have no other adequate remedy, Employee agrees that the foregoing covenant may be enforced by Employer or the Company in the event of breach or threatened breach by Employee, by injunctions, restraining orders and other appropriate equitable relief.
(c) It is agreed by the parties that the foregoing covenants in this paragraph 3 impose a reasonable restraint on Employee in light of the activities and business of the Company (including the Company's subsidiaries) on the date of the execution of this Agreement and the current plans of the Company (including the Company's subsidiaries); but it is also the intent of the Company and Employee that such covenants be construed and enforced in accordance with the changing activities, business and locations of the Company (including the Company's subsidiaries) throughout the term of this covenant, whether before or after the date of termination of the employment of Employee. For example, if, during the term of this Agreement, the Company (including the Company's subsidiaries) engages in new and different activities, enters a new business or establishes new locations for its current activities or business in addition to or other than the activities or business enumerated under the Recitals above or the locations currently established therefor, then Employee will be precluded from soliciting the customers or Employees of such new activities or business or from such new location and from directly competing with such new business within 100 miles of its then-established operating location(s) through the term of this covenant. It is further agreed by the parties hereto that, in the event that Employee shall cease to be employed hereunder, and shall enter into a business or pursue other activities not in competition with the Company (including the Company's subsidiaries), or similar activities or business in locations the operation of which, under such circumstances, does not violate clause (i) of paragraph 3(a), Employee shall not be chargeable with a violation of this paragraph 3 if the Company (including the Company's subsidiaries) shall thereafter enter the same, similar or a competitive (i) business, (ii) course of activities or (iii) location, as applicable.
(d) The covenants in this paragraph 3 are severable and separate, and the unenforceability of any specific covenant shall not affect the provisions of any other covenant. Moreover, in the event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth herein are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which the court deems reasonable, and this Agreement shall thereby be reformed.
(e) All of the covenants in this paragraph 3 shall be construed as an agreement independent of any other provision in this Agreement, and the existence of any claim or cause of action of Employee against Employer or the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Employer or the Company of such covenants. It is specifically agreed that the period of two (2) years following termination of employment stated at the beginning of this paragraph 3, during which the agreements and covenants of Employee made in this paragraph 3 shall be effective, shall be computed by excluding from such computation any time during which Employee is in violation of any provision of this paragraph 3.
Appears in 1 contract
Samples: Management Employment Agreement (Transportation Components Inc)
Noncompetition Agreement. (a) Employee shall not, during During the term of his employment hereunderprovided in Section 1.1 and any extension or renewal hereof, Employee will be engaged in any other business activity pursued for gain, profit or other pecuniary advantage if such activity interferes with Employee's duties and responsibilities hereunder. The foregoing limitations shall not be construed as prohibiting Employee from making personal investments in such form or manner as will neither require his services in the operation or affairs a full-time employee of the companies or enterprises in which Company. During such investments are made nor violate the terms of this paragraph 3. period, Employee will not, during without the period express written consent of his employment Employer:
(i) work as an employee, consultant, owner, part-owner, shareholder, partner, director, officer, trustee or agent of any business, whether or not competitive with Employer or any subsidiary thereof (provided that Employee may invest in less
(ii) invest in any new or ongoing business or venture which investment would require Employee's active involvement in such business or venture.
(b) In addition, for so long as Employee continues to be engaged by Employer or with Employer, any subsidiary thereof as an employee or a consultant and for a period of not less than one (1) year and not more than two (2) years immediately following the termination of his employment under this Agreement, except (as provided below, directly or indirectly, for himself or on behalf of or in conjunction with any other person, persons, company, partnership, corporation or business of whatever nature:
(i) engage, as an officer, director, shareholder, owner, partner, joint venturer, or in a managerial capacity, whether as an employee, independent contractor, consultant or advisor, or as a sales representative, in any business in direct competition with Employer or the Company within 100 miles of where the Company or any of its subsidiaries conduct business, including any territory serviced by the Company or any of such subsidiaries (the "TERRITORY");
(ii) call upon any person who is, at that time, an employee of Employer or the Company (including the respective subsidiaries thereof) in a sales or managerial capacity for the purpose or with the intent of enticing such employee away from or out of the employ of Employer or the Company (including the respective subsidiaries thereof);
(iii) call upon any person or entity which is, at that time, or which has been, within one (1) year prior to that time, a customer of the Company (including the respective subsidiaries thereof) for the purpose of soliciting or selling products or services in direct competition with the Company; or
(iv) call upon any prospective acquisition candidate, on Employee's own behalf or on behalf of any competitor, which candidate was, to Employee's actual knowledge after due inquiry, either called upon selected by Employer or the Company within fifteen (including the respective subsidiaries thereof15) or for which Employer or the Company made an acquisition analysis for the purpose of acquiring such entity or all or substantially all of such entity's assets. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Employee from acquiring as a passive investment not more than two percent (2%) of the capital stock of a competing business the stock of which is traded on a national securities exchange or on an over-the -counter or similar market.
(b) Because of the difficulty of measuring economic losses to Employer or the Company as a result of a breach of the foregoing covenant, and because of the immediate and irreparable damage that could be caused to Employer or the Company for which they would have no other adequate remedy, Employee agrees that the foregoing covenant may be enforced by Employer or the Company in the event of breach or threatened breach by Employee, by injunctions, restraining orders and other appropriate equitable relief.
(c) It is agreed by the parties that the foregoing covenants in this paragraph 3 impose a reasonable restraint on Employee in light of the activities and business of the Company (including the Company's subsidiaries) on the date of the execution of this Agreement and the current plans of the Company (including the Company's subsidiaries); but it is also the intent of the Company and Employee that such covenants be construed and enforced in accordance with the changing activities, business and locations of the Company (including the Company's subsidiaries) throughout the term of this covenant, whether before or after days following the date of termination of the employment of Employee. For exampleemployment) after Employee ceases to be so engaged, if, during the term of this Agreement, the Company (including the Company's subsidiaries) engages in new and different activities, enters a new business or establishes new locations for its current activities or business in addition to or other but not longer than the activities period during which Employer or business enumerated under the Recitals above or the locations currently established therefor, then any subsidiary thereof makes severance payments to Employee will be precluded from soliciting the customers or Employees of such new activities or business or from such new location and from directly competing with such new business within 100 miles of its then-established operating location(s) through the term of this covenant. It is further agreed by the parties hereto that, in the event that Employee shall cease pursuant to be employed hereunder, and shall enter into a business or pursue other activities not in competition with the Company (including the Company's subsidiaries), or similar activities or business in locations the operation of which, under such circumstances, does not violate clause (i) of paragraph 3(aSection 5.3(a), Employee shall not be chargeable with a violation will not, without the express written consent of this paragraph 3 if the Company (including the Company's subsidiaries) shall thereafter enter the sameEmployer, similar directly or a competitive (i) businessindirectly engage, (ii) course of participate or invest in or assist, as owner, part owner, shareholder, partner, director, officer, trustee, employee, agent or consultant, or in any other capacity, any business organization other than Employer whose activities or (iii) location, as applicable.
(d) The covenants in this paragraph 3 products are severable and separate, and the unenforceability competitive with activities or products of any specific covenant shall not affect the provisions of any other covenant. Moreover, in the event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth herein are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which the court deems reasonable, and this Agreement shall thereby be reformed.
(e) All of the covenants in this paragraph 3 shall be construed as an agreement independent of any other provision in this Agreement, and the existence of any claim or cause of action of Employee against Employer or the Companyany subsidiary thereof in which activities Employee shall have participated or as to which products Employee shall have had responsibility either in their development, whether predicated on this Agreement marketing or otherwise, provided that Employee may make passive investments in a competitive enterprise the shares of which are publicly traded if Employee's investment constitutes less than 5% of the outstanding shares of such enterprise. The foregoing agreement not to compete shall not constitute a defense to apply in any and all cities and counties of each state of the enforcement United States of America in which the activities of Employer or any subsidiary thereof shall have been conducted, or the products of any of them sold, on or before the date upon which Employee's employment by Employer or the Company of such covenants. It is specifically agreed that the period of two (2) years following termination of employment stated at the beginning of this paragraph 3, during which the agreements and covenants of Employee made in this paragraph 3 shall be effective, shall be computed by excluding from such computation any time during which Employee is in violation of any provision of this paragraph 3subsidiary thereof ceases.
Appears in 1 contract
Noncompetition Agreement. In consideration of the compensation paid or payable to Executive by the Company pursuant to this Agreement (including, but not limited to, Paragraph 2(b)(iv) hereof), Executive hereby agrees as follows:
(a) Employee shall not, during During the term of his employment hereunder, be engaged in any other business activity pursued for gain, profit or other pecuniary advantage if such activity interferes with Employee's duties and responsibilities hereunder. The foregoing limitations shall not be construed as prohibiting Employee from making personal investments in such form or manner as will neither require his services in the operation or affairs of the companies or enterprises in which such investments are made nor violate the terms Term of this paragraph 3. Employee will not, during the period of his employment by or with Employer, Agreement and for a period of two (2) years immediately following the termination of his employment under this Agreement, except as provided belowExecutive shall not, directly or indirectly, for himself or on behalf of of, or in conjunction with any other person, persons, company, partnership, limited liability company, corporation or other business entity or venture of whatever nature:
: (i) engagecall upon any customer of the Company, as an officerpast or present, directorincluding but limited to, shareholderany customers obtained for the Company by Executive, owner, partner, joint venturer, for the purpose of (A) soliciting or selling any products or services in a managerial capacity, whether as an employee, independent contractor, consultant or advisor, or as a sales representative, in any business in direct competition with Employer any products or the Company within 100 miles of where the Company or any of its subsidiaries conduct business, including any territory serviced services offered by the Company or (B) persuading, inducing or soliciting any such customer to discontinue conducting business with the Company or purchasing any of such subsidiaries (the "TERRITORY");
its products or services; (ii) call upon any person who is, at that time, an employee or consultant of Employer or the Company (including the respective subsidiaries thereof) in a sales or managerial capacity for the purpose or with the intent of persuading or enticing any such employee or consultant away from or out of the employ of Employer the Company; or the Company (including the respective subsidiaries thereof);
(iii) call upon establish, enter into, be employed by or for, advise, consult with or become an owner in or a part of, any person company, partnership, limited liability company, corporation or other business entity which isor venture of whatever nature or in any way engage for himself or for others, at in any business that time, or which has been, within one (1) year prior to that time, a customer of the Company (including the respective subsidiaries thereof) for the purpose of soliciting or selling sells products or services in direct competition that compete with or are similar to the products or services offered by the Company; or
(iv) call upon any prospective acquisition candidate, on Employee's own behalf or on behalf of any competitor, which candidate was, to Employee's actual knowledge after due inquiry, either called upon by Employer or the Company (including the respective subsidiaries thereof) or for which Employer or the Company made an acquisition analysis for the purpose of acquiring such entity or all or substantially all of such entity's assets. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Employee from acquiring as a passive investment not more than two percent (2%) of the capital stock of a competing business the stock of which is traded on a national securities exchange or on an over-the -counter or similar market.
(b) Because of the difficulty of measuring economic losses to Employer or the Company as a result of a breach of the foregoing covenant, and because of the immediate and irreparable damage that could be caused to Employer or the Company for which they would have no other adequate remedy, Employee agrees that the foregoing covenant may be enforced by Employer or the Company in the event of breach or threatened breach by Employee, by injunctions, restraining orders and other appropriate equitable relief.
(c) It is agreed by the parties that the foregoing covenants in this paragraph 3 impose a reasonable restraint on Employee in light of the activities and business of the Company (including the Company's subsidiaries) on the date of the execution of this Agreement and the current plans of the Company (including the Company's subsidiaries); but it is also the intent of the Company and Employee that such covenants be construed and enforced in accordance with the changing activities, business and locations of the Company (including the Company's subsidiaries) throughout the term of this covenant, whether before or after the date of termination of the employment of Employee. For example, if, during the term of this Agreement, the Company (including the Company's subsidiaries) engages in new and different activities, enters a new business or establishes new locations for its current activities or business in addition to or other than the activities or business enumerated under the Recitals above or the locations currently established therefor, then Employee will be precluded from soliciting the customers or Employees of such new activities or business or from such new location and from directly competing with such new business within 100 miles of its then-established operating location(s) through the term of this covenant. It is further agreed by the parties hereto that, in the event that Employee shall cease to be employed hereunder, and shall enter into a business or pursue other activities not in competition with the Company (including the Company's subsidiaries), or similar activities or business in locations the operation of which, under such circumstances, does not violate clause (i) of paragraph 3(a), Employee shall not be chargeable with a violation of this paragraph 3 if the Company (including the Company's subsidiaries) shall thereafter enter the same, similar or a competitive (i) business, (ii) course of activities or (iii) location, as applicable.
(d) The covenants in this paragraph 3 are severable and separate, and the unenforceability of any specific covenant shall not affect the provisions of any other covenant. Moreover, in the event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth herein are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which the court deems reasonable, and this Agreement shall thereby be reformed.
(e) All of the covenants in this paragraph 3 shall be construed as an agreement independent of any other provision in this Agreement, and the existence of any claim or cause of action of Employee Executive against Employer or the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to preclude the Company’s enforcement by Employer or the Company of such these covenants. It is specifically agreed .
(c) Executive acknowledges and agrees that the period of two (2) years following termination of employment stated at the beginning of this paragraph 3, during which the agreements and covenants of Employee made set forth in this paragraph 3 shall are necessary and reasonable to protect the Company and the conduct of its business and are a fair and reasonable restraint on Executive in light of the activities and business of the Company on the date of execution of this Agreement and the future plans of the Company; and that such covenants also be effective, shall be computed by excluding from such computation any time during which Employee is construed and enforced in violation light of any provision the activities and business of the Company (including business activities in the planning stage) on the date of termination of Executive’s employment with the Company.
(d) The provisions of this paragraph 33 shall survive any of this Agreement and are subject to paragraph 8 of this Agreement.
Appears in 1 contract
Noncompetition Agreement. In consideration of the compensation paid or payable to Executive by the Company pursuant to this Agreement (including, but not limited to, Paragraph 2(b)(iv) hereof), Executive hereby agrees as follows:
(a) Employee shall not, during During the term of his employment hereunder, be engaged in any other business activity pursued for gain, profit or other pecuniary advantage if such activity interferes with Employee's duties and responsibilities hereunder. The foregoing limitations shall not be construed as prohibiting Employee from making personal investments in such form or manner as will neither require his services in the operation or affairs of the companies or enterprises in which such investments are made nor violate the terms Term of this paragraph 3. Employee will not, during the period of his employment by or with Employer, Agreement and for a period of two (2) years immediately following the termination of his employment under this Agreement, except as provided belowExecutive shall not, directly or indirectly, for himself or on behalf of of, or in conjunction with any other person, persons, company, partnership, limited liability company, corporation or other business entity or venture of whatever nature:
: (i) engagecall upon any customer of the Company, as an officerpast or present, directorincluding but limited to, shareholderany customers obtained for the Company by Executive, owner, partner, joint venturer, for the purpose of (A) soliciting or selling any products or services in a managerial capacity, whether as an employee, independent contractor, consultant or advisor, or as a sales representative, in any business in direct competition with Employer any products or the Company within 100 miles of where the Company or any of its subsidiaries conduct business, including any territory serviced services offered by the Company or (B) persuading, inducing or soliciting any such customer to discontinue conducting business with the Company or purchasing any of such subsidiaries (the "TERRITORY");
its products or services; (ii) call upon any person who is, at that time, an employee or consultant of Employer or the Company (including the respective subsidiaries thereof) in a sales or managerial capacity for the purpose or with the intent of persuading or enticing any such employee or consultant away from or out of the employ of Employer the Company; or the Company (including the respective subsidiaries thereof);
(iii) call upon establish, enter into, be employed by or for, advise, consult with or become an owner in or a part of, any person company, partnership, limited liability company, corporation or other business entity which isor venture of whatever nature or in any way engage for himself or for others, at in any business that time, or which has been, within one (1) year prior to that time, a customer of the Company (including the respective subsidiaries thereof) for the purpose of soliciting or selling sells products or services in direct competition that compete with or are similar to the products or services offered by the Company; or
(iv) call upon any prospective acquisition candidate, on Employee's own behalf or on behalf of any competitor, which candidate was, to Employee's actual knowledge after due inquiry, either called upon by Employer or the Company (including the respective subsidiaries thereof) or for which Employer or the Company made an acquisition analysis for the purpose of acquiring such entity or all or substantially all of such entity's assets. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Employee from acquiring as a passive investment not more than two percent (2%) of the capital stock of a competing business the stock of which is traded on a national securities exchange or on an over-the -counter or similar market.
(b) Because of the difficulty of measuring economic losses to Employer or the Company as a result of a breach of the foregoing covenant, and because of the immediate and irreparable damage that could be caused to Employer or the Company for which they would have no other adequate remedy, Employee agrees that the foregoing covenant may be enforced by Employer or the Company in the event of breach or threatened breach by Employee, by injunctions, restraining orders and other appropriate equitable relief.
(c) It is agreed by the parties that the foregoing covenants in this paragraph 3 impose a reasonable restraint on Employee in light of the activities and business of the Company (including the Company's subsidiaries) on the date of the execution of this Agreement and the current plans of the Company (including the Company's subsidiaries); but it is also the intent of the Company and Employee that such covenants be construed and enforced in accordance with the changing activities, business and locations of the Company (including the Company's subsidiaries) throughout the term of this covenant, whether before or after the date of termination of the employment of Employee. For example, if, during the term of this Agreement, the Company (including the Company's subsidiaries) engages in new and different activities, enters a new business or establishes new locations for its current activities or business in addition to or other than the activities or business enumerated under the Recitals above or the locations currently established therefor, then Employee will be precluded from soliciting the customers or Employees of such new activities or business or from such new location and from directly competing with such new business within 100 miles of its then-established operating location(s) through the term of this covenant. It is further agreed by the parties hereto that, in the event that Employee shall cease to be employed hereunder, and shall enter into a business or pursue other activities not in competition with the Company (including the Company's subsidiaries), or similar activities or business in locations the operation of which, under such circumstances, does not violate clause (i) of paragraph 3(a), Employee shall not be chargeable with a violation of this paragraph 3 if the Company (including the Company's subsidiaries) shall thereafter enter the same, similar or a competitive (i) business, (ii) course of activities or (iii) location, as applicable.
(d) The covenants in this paragraph 3 are severable and separate, and the unenforceability of any specific covenant shall not affect the provisions of any other covenant. Moreover, in the event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth herein are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which the court deems reasonable, and this Agreement shall thereby be reformed.
(e) All of the covenants in this paragraph 3 shall be construed as an agreement independent of any other provision in this Agreement, and the existence of any claim or cause of action of Employee the Executive against Employer or the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to preclude the Company's enforcement by Employer or the Company of such these covenants. It is specifically agreed .
(c) Executive acknowledges and agrees that the period of two (2) years following termination of employment stated at the beginning of this paragraph 3, during which the agreements and covenants of Employee made set forth in this paragraph 3 shall are necessary and reasonable to protect the Company and the conduct of its business and are a fair and reasonable restraint on the Executive in light of the activities and business of the Company on the date of execution of this Agreement and the future plans of the Company; and that such covenants also be effective, shall be computed by excluding from such computation any time during which Employee is construed and enforced light of the activities and business of the Company (including business activities in violation the planning stage) on the date of any provision termination of the Executive's employment with the Company.
(d) The provisions of this paragraph 33 shall survive any termination of this Agreement and are subject to paragraph 8 of this Agreement.
Appears in 1 contract
Noncompetition Agreement. (a) Employee shall not, agrees that during the ------------- ------------------------- term of his employment hereunderthis Agreement and for the Restricted Period (defined below), be engaged in any other business activity pursued for gain, profit or other pecuniary advantage if such activity interferes except with Employee's duties and responsibilities hereunder. The foregoing limitations shall not be construed as prohibiting Employee from making personal investments in such form or manner as will neither require his services in the operation or affairs express consent of the companies or enterprises in which such investments are made nor violate the terms of this paragraph 3. Employee Employer, he will not, during the period of his employment by or with Employer, and for a period of two (2) years immediately following the termination of his employment under this Agreement, except as provided below, directly or indirectly, for himself engage or on behalf of participate in, become a director of, or render advisory or other services for, or in conjunction with connection with, or become interested in, or make any other personfinancial investment in any Entity as hereinafter defined; provided, personshowever, company, partnership, corporation that the Employee shall not thereby be precluded or business prohibited from owning passive investments in the securities of whatever natureany publicly traded Entity or from owning five (5%) percent or less of the securities of any non-publicly-traded Entity. By way of example and not limitation:
(ia) engageDuring the term of this Agreement and during the Restricted Period, Employee covenants and agrees that he will not, without Employer's prior written consent, directly or indirectly or as an a director, officer, director, shareholder, owneremployee, partner, joint venturerconsultant, or otherwise in any way aid or assist or have any interest in, or render advisory or other services for, or in a managerial capacity, whether as an employee, independent contractor, consultant or advisorconnection with, or as a sales representative, make any financial investment in any business in direct competition with Employer or the Company within 100 miles of where the Company or any of its subsidiaries conduct business, including any territory serviced by the Company or any of such subsidiaries Entity (the "TERRITORY"as hereinafter defined);
(ii) call upon any person who is, at that time, an employee of Employer or the Company (including the respective subsidiaries thereof) in a sales or managerial capacity for the purpose or with the intent of enticing such employee away from or out of the employ of Employer or the Company (including the respective subsidiaries thereof);
(iii) call upon any person or entity which is, at that time, or which has been, within one (1) year prior to that time, a customer of the Company (including the respective subsidiaries thereof) for the purpose of soliciting or selling products or services in direct competition with the Company; or
(iv) call upon any prospective acquisition candidate, on Employee's own behalf or on behalf of any competitor, which candidate was, to Employee's actual knowledge after due inquiry, either called upon by Employer or the Company (including the respective subsidiaries thereof) or for which Employer or the Company made an acquisition analysis for the purpose of acquiring such entity or all or substantially all of such entity's assets. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Employee from acquiring as a passive investment not more than two percent (2%) of the capital stock of a competing business the stock of which is traded on a national securities exchange or on an over-the -counter or similar market.
(b) Because Employee further covenants and agrees that during the Restricted Period, he will not, directly or indirectly, employ, or knowingly permit any Entity directly or indirectly controlled by him to employ, any person employed by Employer at any time during the term of the difficulty of measuring economic losses to Employer this Agreement or the Company as a result of a breach of the foregoing covenantRestricted Period, and because of the immediate and irreparable damage that could be caused or in any manner seek to Employer induce any such person to leave his or the Company for which they would have no other adequate remedy, Employee agrees that the foregoing covenant may be enforced by Employer or the Company in the event of breach or threatened breach by Employee, by injunctions, restraining orders and other appropriate equitable reliefher employment with Employer.
(c) It is agreed by For the parties that the foregoing covenants in this paragraph 3 impose a reasonable restraint on Employee in light of the activities and business of the Company (including the Company's subsidiaries) on the date of the execution purposes of this Agreement and the current plans of the Company (including the Company's subsidiaries); but it is also the intent of the Company and Employee that such covenants be construed and enforced in accordance with the changing activitiesSection, an "Entity" means any corporation, partnership, joint venture, sole proprietorship, association, syndicate, trust, business and locations trust or other form of the Company (including the Company's subsidiaries) throughout the term entity of this covenantwhatsoever nature, whether before for profit or after the date of termination of the employment of Employee. For examplenot-for-profit, if, during the term of this Agreement, the Company (including the Company's subsidiaries) engages in new and different activities, enters a new business or establishes new locations for its current activities or business in addition to or other than the activities or business enumerated under the Recitals above or the locations currently established therefor, then Employee will be precluded from soliciting the customers or Employees of such new activities or business or from such new location and from directly competing with such new business within 100 miles of its then-established operating location(s) through the term of this covenant. It is further agreed by the parties hereto that, in the event that Employee shall cease to be employed hereunder, and shall enter into a business or pursue other activities not in competition with the Company (including the Company's subsidiaries), or similar activities or business in locations the operation of which, under such circumstances, does not violate clause (i) of paragraph 3(a), Employee shall not be chargeable with a violation of this paragraph 3 if the Company (including the Company's subsidiaries) shall thereafter enter the same, similar or a competitive (i) business, (ii) course of activities or (iii) location, as applicablewhich develops and/or sells CAD/CAM software.
(d) The covenants in this paragraph 3 are severable and separate, and the unenforceability of any specific covenant shall not affect the provisions of any other covenant. Moreover, in the event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth herein are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which the court deems reasonable, and this Agreement shall thereby be reformed.
(e) All of the covenants in this paragraph 3 shall be construed as an agreement independent of any other provision in this Agreement, and the existence of any claim or cause of action of Employee against Employer or the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Employer or the Company of such covenants. It is specifically agreed that the period of two (2) years following termination of employment stated at the beginning of this paragraph 3, during which the agreements and covenants of Employee made in this paragraph 3 shall be effective, shall be computed by excluding from such computation any time during which Employee is in violation of any provision of this paragraph 3.
Appears in 1 contract
Noncompetition Agreement. (a) Employee shall not, during the term of his employment hereunder, be engaged in any other business activity pursued for gain, profit or other pecuniary advantage if such activity interferes with Employee's duties and responsibilities hereunder. The foregoing limitations shall not be construed as prohibiting Employee from making personal investments in such form or manner as will neither require his services in the operation or affairs of the companies or enterprises in which such investments are made nor violate the terms of this paragraph 3. Employee will not, during the period of his employment by or with EmployerCompany, and for a period of two (2) years immediately following the termination of his employment under this Agreement, except as provided below, directly or indirectly, for himself or on behalf of or in conjunction with any other person, persons, company, partnership, corporation or business of whatever nature:
(i) engage, as an officer, director, shareholder, owner, partner, joint venturer, or in a managerial capacity, whether as an employee, independent contractor, consultant or advisor, or as a sales representative, in any business in direct competition with Employer Company or the Company any of its subsidiaries and affiliates within 100 miles of where the Company or any of its subsidiaries and affiliates conduct business, including any territory serviced by the Company or any of such subsidiaries (the "TERRITORY");
(ii) call upon any person who is, at that time, an employee of Employer Company or the Company (including the respective any of its subsidiaries thereof) in a or affiliates sales or managerial capacity for the purpose or with the intent of enticing such employee away from or out of the employ of Employer Company or the Company (including the respective any of its subsidiaries thereof)or affiliates or any its subsidiaries or affiliates;
(iii) call upon any person or entity which is, at that time, or which has been, within one (1) year prior to that time, a customer of the Company (including the respective or any of its subsidiaries thereof) or affiliates for the purpose of soliciting or selling products or services in direct competition with the CompanyCompany or any of its subsidiaries or affiliates; or
(iv) call upon any prospective acquisition candidate, on Employee's own behalf or on behalf of any competitor, which candidate was, to Employee's actual knowledge after due inquiry, either called upon by Employer Company or the Company (including the respective any of its subsidiaries thereof) or affiliates or for which Employer or the Company made Employee participated in an acquisition analysis for the purpose of acquiring such entity or all or substantially all of such entity's assets. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Employee from acquiring as a passive investment not more than two percent (2%) of the capital stock of a competing business the stock of which is traded on a national securities exchange or on an over-the -counter the-counter or similar market.
(b) Because of the difficulty of measuring economic losses to Employer Company or the Company any of its subsidiaries or affiliates as a result of a breach of the foregoing covenant, and because of the immediate and irreparable damage that could be caused to Employer Company or the Company any of its subsidiaries or affiliates for which they would have no other adequate remedy, Employee agrees that the foregoing covenant may be enforced by Employer Company or the Company any of its subsidiaries or affiliates in the event of breach or threatened breach by Employee, by injunctions, restraining orders and other appropriate equitable relief.
(c) It is agreed by the parties that the foregoing covenants in this paragraph 3 impose a reasonable restraint on Employee in light of the activities and business of the Company (including the Company's subsidiaries) on the date of the execution of this Agreement and the current plans of the Company (including the Company's subsidiaries)or any of its subsidiaries or affiliates; but it is also the intent of the Company and Employee that such covenants be construed and enforced in accordance with the changing activities, business and locations of the Company (including the Company's subsidiaries) or any of its subsidiaries or affiliates throughout the term of this covenant, whether before or after the date of termination of the employment of Employee. For example, if, during the term of this Agreement, the Company (including the Company's subsidiaries) or any of its subsidiaries or affiliates engages in new and different activities, enters a new business or establishes new locations for its current activities or business in addition to or other than the activities or business enumerated under the Recitals above or the locations currently established therefor, then Employee will be precluded from soliciting the customers or Employees of such new activities or business or from such new location and from directly competing with such new business within 100 miles of its then-established operating location(s) through the term of this covenant. It is further agreed by the parties hereto that, in the event that Employee shall cease to be employed hereunder, and shall enter into a business or pursue other activities not in competition with the Company (including the Company's subsidiaries)or any of its subsidiaries or affiliates, or similar activities or business in locations the operation of which, under such circumstances, does not violate clause (i) of paragraph 3(a), Employee shall not be chargeable with a violation of this paragraph 3 if the Company (including the Company's subsidiaries) or any of its subsidiaries or affiliates shall thereafter enter the same, similar or a competitive (i) business, (ii) course of activities or (iii) location, as applicable.
(d) The covenants in this paragraph 3 are severable and separate, and the unenforceability of any specific covenant shall not affect the provisions of any other covenant. Moreover, in the event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth herein are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which the court deems reasonable, and this Agreement shall thereby be reformed.
(e) All of the covenants in this paragraph 3 shall be construed as an agreement independent of any other provision in this Agreement, and the existence of any claim or cause of action of Employee against Employer Company or the Companyany of its subsidiaries or affiliates, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Employer Company or the Company any of its subsidiaries or affiliates of such covenants. It is specifically agreed that the period of two (2) years following termination of employment stated at the beginning of this paragraph 3, during which the agreements and covenants of Employee made in this paragraph 3 shall be effective, shall be computed by excluding from such computation any time during which Employee is in violation of any provision of this paragraph 3.
Appears in 1 contract
Noncompetition Agreement. (a) Employee shall notDuring the period commencing on the Closing Date and ending five years from the Closing Date, during the term of his employment hereunder, be engaged in any other business activity pursued for gain, profit or other pecuniary advantage if such activity interferes with Employee's duties Seller and responsibilities hereunder. The foregoing limitations shall not be construed as prohibiting Employee from making personal investments in such form or manner as will neither require his services in the operation or affairs of the companies or enterprises in which such investments are made nor violate the terms of this paragraph 3. Employee Shareholders will not, during the period of his employment by or with Employer, and for a period of two (2) years immediately following the termination of his employment under this Agreement, except as provided below, directly or indirectly, for himself indirectly or on behalf of or in conjunction with any other person, persons, company, partnership, corporation or business of whatever naturethrough an affiliate:
(i) engage, as an officer, director, shareholderindividual proprietor, owner, partner, stockholder, officer, employee, director, consultant, agent, joint venturer, investor, lender, or in any other capacity whatsoever (other than as the holder of not more than five percent of the total outstanding stock of any company the securities of which are traded on a managerial regular basis on recognized securities exchanges or any national over-the-counter market), alone or in association with others, or in any capacity, whether as an employeeown, independent contractormanage, consultant or advisoroperate, control, consult with, provide financing to, be employed by, or as a sales representativeinvest in, in any business competitive with that of the Buyer, including, without limitation, the manufacture, distribution and marketing of perfume and other fragrance products or related services or business in direct competition with Employer or the Company within 100 miles of where the Company or any of its subsidiaries conduct business, including any territory serviced by the Company or any of such subsidiaries (the "TERRITORY")United States;
(ii) call upon recruit or otherwise solicit or induce any person (natural or otherwise) who is, at that time, is or becomes an employee or consultant of Employer the Buyer to terminate his or her employment with, or otherwise cease his or her relationship with, the Company (including the respective subsidiaries thereof) in a sales Buyer or managerial capacity for the purpose any of its affiliates, or with the intent of enticing hire any such employee away from or out of consultant who has left the employ of Employer the Buyer or its affiliates within one year after termination of such employee's or consultant's employment with the Company (including the respective subsidiaries thereof)Buyer or its affiliates;
(iii) call upon solicit or attempt to solicit any person licensors, licensees, suppliers, manufacturers, customers or entity which is, at that time, or which has been, within one (1) year prior to that time, a customer clients of the Company (including the respective subsidiaries thereof) for the purpose of soliciting or selling products or services in direct competition with the Company; or
(iv) call upon any prospective acquisition candidate, on Employee's own behalf or on behalf of any competitor, which candidate was, to Employee's actual knowledge after due inquiry, either called upon by Employer or the Company (including the respective subsidiaries thereof) or for which Employer or the Company made an acquisition analysis for the purpose of acquiring such entity or all or substantially all of such entity's assets. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Employee from acquiring as a passive investment not more than two percent (2%) of the capital stock of a competing business the stock of which is traded on a national securities exchange or on an over-the -counter or similar marketBuyer.
(b) Because The restrictions set forth in clause (a) above are considered by the parties to be reasonable for the purposes of protecting the business investment of the difficulty of measuring economic losses to Employer or Buyer and its legitimate business interests, it being acknowledged that the Company as a result of a breach business of the foregoing covenant, Seller and because that of the immediate and irreparable damage that could be caused to Employer or Buyer are conducted throughout the Company for United States. In view of the substantial harm which they would have no other adequate remedy, Employee agrees that the foregoing covenant may be enforced by Employer or the Company in the event of result from a breach or threatened breach by Employeeany of the Seller, the Shareholders or their affiliates of the covenants contained in clause (a) hereof and in Section 6.9 hereof, the parties agree that such covenants shall be enforced to the maximum extent permitted by injunctionslaw. If any such covenant or portion thereof is found by any court of competent jurisdiction to be illegal, restraining orders and void or unenforceable because it extends for too long a period of time or over too broad a range of activities or in too large a geographic area or for any other appropriate equitable reliefreason, however, such restriction shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable or otherwise so as to render the covenant enforceable.
(c) It is agreed by The foregoing five-year period shall be tolled for any period(s) of violation or period(s) of time required for litigation to enforce the parties that the foregoing covenants in this paragraph 3 impose a reasonable restraint on Employee in light of the activities and business of the Company (including the Company's subsidiaries) on the date of the execution of this Agreement and the current plans of the Company (including the Company's subsidiaries); but it is also the intent of the Company and Employee that such covenants be construed and enforced in accordance with the changing activities, business and locations of the Company (including the Company's subsidiaries) throughout the term of this covenant, whether before or after the date of termination of the employment of Employee. For example, if, during the term of this Agreement, the Company (including the Company's subsidiaries) engages in new and different activities, enters a new business or establishes new locations for its current activities or business in addition to or other than the activities or business enumerated under the Recitals above or the locations currently established therefor, then Employee will be precluded from soliciting the customers or Employees of such new activities or business or from such new location and from directly competing with such new business within 100 miles of its then-established operating location(s) through the term of this covenant. It is further agreed by the parties hereto that, herein in the event that Employee shall cease to be employed hereunder, no preliminary injunction is issued against the Seller or the Shareholders and shall enter into a business or pursue other activities not in competition with the Company (including Buyer is the Company's subsidiaries), or similar activities or business in locations the operation of which, under such circumstances, does not violate clause (i) of paragraph 3(a), Employee shall not be chargeable with a violation of this paragraph 3 if the Company (including the Company's subsidiaries) shall thereafter enter the same, similar or a competitive (i) business, (ii) course of activities or (iii) location, as applicableprevailing party.
(d) The covenants in this paragraph 3 are severable and separate, Seller and the unenforceability of any specific covenant shall not affect Shareholders acknowledge and agree that the provisions of any other covenant. Moreover, in the event any court of competent jurisdiction shall determine hereof are necessary and desirable to ensure that the scope, time or territorial restrictions set forth Buyer obtains the benefit of its bargain under this Agreement and that the covenants contained herein are unreasonablea material and integral part of this Agreement and necessary to protect the legitimate business interests of the Buyer. The Seller and the Shareholders further acknowledges and agrees that, then it is due to their knowledge of the intention Business, any subsequent competition would irreparably harm the Buyer and deny the Buyer the benefit of the bargain of the parties that such restrictions be enforced to the fullest extent which the court deems reasonable, and as contained in this Agreement shall thereby be reformed.
(e) All of the covenants in this paragraph 3 shall be construed as an agreement independent of any other provision in this Agreement, and the existence of any claim or cause of action of Employee against Employer or the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Employer or the Company of such covenants. It is specifically agreed that the period only effective way of two (2) years following termination of employment stated at protecting the beginning of this paragraph 3, during which Buyer is to enter into a non-competition agreement on the agreements terms and covenants of Employee made in this paragraph 3 shall be effective, shall be computed by excluding from such computation any time during which Employee is in violation of any provision of this paragraph 3conditions contained herein.
Appears in 1 contract
Noncompetition Agreement. (a) Employee shall not, agrees that during the ------------ ------------------------- term of his employment hereunder, be engaged in any other business activity pursued for gain, profit or other pecuniary advantage if such activity interferes with Employee's duties and responsibilities hereunder. The foregoing limitations shall not be construed as prohibiting Employee from making personal investments in such form or manner as will neither require his services in the operation or affairs of the companies or enterprises in which such investments are made nor violate the terms of this paragraph 3. Employee will not, during the period of his employment by or with Employer, Agreement and for a period of two (2) years immediately following the termination of his employment under this AgreementAgreement for any reason other than as provided in Paragraph (d) below, except as provided belowwith the express consent of the Employer and the Parent, he will not, directly or indirectly, for himself engage or on behalf of participate in, become a director of, or render advisory or other services for, or in conjunction with connection with, or become interested in, or make any other personfinancial investment in any firm, personscorporation, company, partnership, corporation business entity or business enterprise competitive with or to any business of whatever naturethe Employer; provided, however, that the Employee shall not thereby be precluded or prohibited from owning passive investments in the securities of publicly traded corporations. By way of example and not limitation:
(ia) engage, as an officer, director, shareholder, owner, partner, joint venturer, or in a managerial capacity, whether as an employee, independent contractor, consultant or advisor, or as a sales representative, in any business in direct competition with Employer or During the Company within 100 miles of where the Company or any of its subsidiaries conduct business, including any territory serviced by the Company or any of such subsidiaries (the "TERRITORY");
(ii) call upon any person who is, at that time, an employee of Employer or the Company (including the respective subsidiaries thereof) in a sales or managerial capacity for the purpose or with the intent of enticing such employee away from or out of the employ of Employer or the Company (including the respective subsidiaries thereof);
(iii) call upon any person or entity which is, at that time, or which has been, within one (1) year prior to that time, a customer of the Company (including the respective subsidiaries thereof) for the purpose of soliciting or selling products or services in direct competition with the Company; or
(iv) call upon any prospective acquisition candidate, on Employee's own behalf or on behalf of any competitor, which candidate was, to Employee's actual knowledge after due inquiry, either called upon by Employer or the Company (including the respective subsidiaries thereof) or for which Employer or the Company made an acquisition analysis for the purpose of acquiring such entity or all or substantially all of such entity's assets. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Employee from acquiring as a passive investment not more than two percent (2%) of the capital stock of a competing business the stock of which is traded on a national securities exchange or on an over-the -counter or similar market.
(b) Because of the difficulty of measuring economic losses to Employer or the Company as a result of a breach of the foregoing covenant, and because of the immediate and irreparable damage that could be caused to Employer or the Company for which they would have no other adequate remedy, Employee agrees that the foregoing covenant may be enforced by Employer or the Company in the event of breach or threatened breach by Employee, by injunctions, restraining orders and other appropriate equitable relief.
(c) It is agreed by the parties that the foregoing covenants in this paragraph 3 impose a reasonable restraint on Employee in light of the activities and business of the Company (including the Company's subsidiaries) on the date of the execution term of this Agreement and the current plans of the Company (including the Company's subsidiaries); but it is also the intent of the Company and Employee that such covenants be construed and enforced in accordance with the changing activities, business and locations of the Company (including the Company's subsidiaries) throughout the term of this covenant, whether before or after the date of termination of the employment of Employee. For example, if, during the term of this Agreement, the Company (including the Company's subsidiaries) engages in new and different activities, enters for a new business or establishes new locations for its current activities or business in addition to or other than the activities or business enumerated under the Recitals above or the locations currently established therefor, then Employee will be precluded from soliciting the customers or Employees of such new activities or business or from such new location and from directly competing with such new business within 100 miles of its then-established operating location(s) through the term of this covenant. It is further agreed by the parties hereto that, in the event that Employee shall cease to be employed hereunder, and shall enter into a business or pursue other activities not in competition with the Company (including the Company's subsidiaries), or similar activities or business in locations the operation of which, under such circumstances, does not violate clause (i) of paragraph 3(a), Employee shall not be chargeable with a violation of this paragraph 3 if the Company (including the Company's subsidiaries) shall thereafter enter the same, similar or a competitive (i) business, (ii) course of activities or (iii) location, as applicable.
(d) The covenants in this paragraph 3 are severable and separate, and the unenforceability of any specific covenant shall not affect the provisions of any other covenant. Moreover, in the event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth herein are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which the court deems reasonable, and this Agreement shall thereby be reformed.
(e) All of the covenants in this paragraph 3 shall be construed as an agreement independent of any other provision in this Agreement, and the existence of any claim or cause of action of Employee against Employer or the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Employer or the Company of such covenants. It is specifically agreed that the period of two (2) years following termination of employment stated this Agreement for any reason, Employee covenants and agrees that he will not, without Employer's and Parent's prior written consent, directly or indirectly or as a director, officer, employee, partner, consultant, or otherwise in any way aid or assist or have any interest in, or render advisory or other services for, or in connection with, or make any financial investment in any Entity (as hereinafter defined).
(b) Employee further covenants and agrees that during such two (2)- year period, he will not, directly or indirectly, employ, or knowingly permit any corporation, partnership, joint venture, sole proprietorship, association, syndicate, trust or other entity directly or indirectly controlled by him to employ, any person employed by Employer at the beginning of this paragraph 3, during which the agreements and covenants of Employee made in this paragraph 3 shall be effective, shall be computed by excluding from such computation any time during which Employee is in violation of any provision the term of this paragraph 3Agreement or the two (2)-year period following its termination, or in any manner seek to induce any such person to leave his or her employment with Employer.
(c) For the purposes of this Section, an "Entity" means any corporation, partnership, joint venture, sole proprietorship, association, syndicate, trust, business trust or other form of entity of whatsoever nature, whether for profit or not-for-profit, which owns or operates a business which develops, manufactures and/or sells computer programs and/or software for use in machine shop estimating or any other computer programs and/or software owned or developed by Employer prior to or during the term of this Agreement.
Appears in 1 contract
Noncompetition Agreement. For and in consideration of the purchase by Buyer of the Assets and the assumption of the Liabilities, the payment of the Purchase Premium and the other agreements and covenants contained in this Agreement, beginning on the date of this Agreement and continuing for a period of one (1) year following the Closing Date, except as otherwise provided in this Agreement, Seller shall not (a) Employee shall not, during solicit the term banking business of his employment hereunder, be engaged in any other business activity pursued for gain, profit current customers of the Branches whose Deposits or other pecuniary advantage if such activity interferes with Employee's duties and responsibilities hereunder. The foregoing limitations shall not be construed as prohibiting Employee from making personal investments in such form or manner as will neither require his services in the operation or affairs of the companies or enterprises in which such investments banking business are made nor violate transferred to Buyer pursuant to the terms of this paragraph 3. Employee will not, during the period of his employment by or with Employer, and for a period of two (2) years immediately following the termination of his employment under this Agreement, except as provided below(b) open, acquire, establish or operate, directly or indirectly, for himself any financial institution facility of any kind (including, without limitation, any branch office or on behalf of or loan production office) in conjunction with any other personBexar, personsComal and Gxxxxxxxx Counties, company, partnership, corporation or business of whatever nature:
(i) engage, as an officer, director, shareholder, owner, partner, joint venturerTexas, or in a managerial capacity, whether as an employee, independent contractor, consultant or advisor, or as a sales representative, in (c) solicit any business in direct competition with Employer or the Company within 100 miles of where the Company Employee or any of its subsidiaries conduct business, including any territory serviced by the Company or any of such subsidiaries (the "TERRITORY");
(ii) call upon any person who is, at that time, an employee of Employer Buyer (whether or the Company (including the respective subsidiaries thereofnot a former employee of Seller) in a sales or managerial capacity for the purpose or with the intent of enticing such employee away from or out of to leave the employ of Employer or the Company (including the respective subsidiaries thereof);
(iii) call upon any person or entity which is, at that time, or which has been, within one (1) year prior to that time, a customer of the Company (including the respective subsidiaries thereof) for the purpose of soliciting or selling products or services in direct competition with the Company; or
(iv) call upon any prospective acquisition candidate, on Employee's own behalf or on behalf of any competitor, which candidate was, to Employee's actual knowledge after due inquiry, either called upon by Employer or the Company (including the respective subsidiaries thereof) or for which Employer or the Company made an acquisition analysis for the purpose of acquiring such entity or all or substantially all of such entity's assetsBuyer. Notwithstanding the aboveforegoing sentence, the foregoing covenant Seller shall not be deemed to prohibit Employee from acquiring as a passive investment not more than two percent be in violation of thisSection 4.11 by virtue of Seller's (2%i) advertising in publications that arenormally distributed in, or by means of, radio or television advertising over stations that broadcast in geographic areas which include the primary market area of the capital stock of a competing business the stock of which is traded on a national securities exchange or on an over-the -counter or similar market.
(b) Because of the difficulty of measuring economic losses to Employer or the Company as a result of a breach of the foregoing covenant, Branches and because of the immediate and irreparable damage that could be caused to Employer or the Company for which they would have no other adequate remedy, Employee agrees that the foregoing covenant may be enforced geographic markets served by Employer or the Company in the event of breach or threatened breach by Employee, by injunctions, restraining orders and other appropriate equitable relief.
(c) It is agreed by the parties that the foregoing covenants in this paragraph 3 impose a reasonable restraint on Employee in light of the activities and business of the Company (including the CompanySeller's subsidiaries) on the date of the execution of this Agreement and the current plans of the Company (including the Company's subsidiaries); but it is also the intent of the Company and Employee that such covenants be construed and enforced in accordance with the changing activities, business and locations of the Company (including the Company's subsidiaries) throughout the term of this covenant, whether before or after the date of termination of the employment of Employee. For example, if, during the term of this Agreement, the Company (including the Company's subsidiaries) engages in new and different activities, enters a new business or establishes new locations for its current activities or business in addition to or other than the activities or business enumerated under the Recitals above or the locations currently established therefor, then Employee will be precluded from soliciting the customers or Employees of such new activities or business or from such new location and from directly competing with such new business within 100 miles of its then-established operating location(s) through the term of this covenant. It is further agreed by the parties hereto that, in the event that Employee shall cease to be employed hereunder, and shall enter into a business or pursue other activities not in competition with the Company (including the Company's subsidiaries), or similar activities or business in locations the operation of which, under such circumstances, does not violate clause (i) of paragraph 3(a), Employee shall not be chargeable with a violation of this paragraph 3 if the Company (including the Company's subsidiaries) shall thereafter enter the same, similar or a competitive (i) businessBranches, (ii) course communications with any person who is a customer of activities both Seller and Buyer with respect to any loan, deposit or other banking product or service obtained by such person from Seller prior to the date hereof; and (iii) locationresponding to any unsolicited communications from customers or employees of the Branches, as applicable.
(d) The covenants including any unsolicited communications that result in a customer opening a deposit account with, or obtaining a loan or other banking product or service from, Seller. For purposes of this paragraph 3 are severable Section 4.11, the primary market area of the Branches means Bexar and separateComal and Gxxxxxxxx Counties, and the unenforceability of any specific covenant shall not affect the provisions of any other covenantTexas. Moreover, in the event If any court of competent jurisdiction shall should determine that the scopeany term or terms of this covenant are too broad in terms of time, time or territorial restrictions set forth herein are unreasonablegeographic area, then it is the intention lines of the parties that such restrictions be enforced to the fullest extent which the court deems reasonable, and this Agreement shall thereby be reformed.
(e) All of the covenants in this paragraph 3 shall be construed as an agreement independent of any other provision in this Agreement, and the existence of any claim or cause of action of Employee against Employer or the Company, whether predicated on this Agreement commerce or otherwise, such court shall not constitute a defense to the enforcement by Employer modify and revise any such term or the Company of such covenants. It is specifically agreed terms so that the period of two (2) years following termination of employment stated at the beginning of this paragraph 3, during which the agreements and covenants of Employee made in this paragraph 3 shall be effective, shall be computed by excluding from such computation any time during which Employee is in violation of any provision of this paragraph 3they comply with applicable law.
Appears in 1 contract
Samples: Branch Purchase and Assumption Agreement (Surety Capital Corp /De/)
Noncompetition Agreement. Employee acknowledges and agrees that the training he will receive, the experience he will gain while employed and the information he will acquire regarding the Corporation's trade secrets and confidential and proprietary information will enable him to injure the Corporation if (ax) during the term of his employment he should compete with the Corporation in a business that is competitive with the business conducted or to be conducted by the Corporation or (y) at any time he should solicit the customers of the Corporation. For these reasons, Employee hereby agrees as follows:
(i) Without the prior written consent of the Corporation, Employee shall not, during the term of his employment hereunder, be engaged in any other business activity pursued for gain, profit or other pecuniary advantage if such activity interferes with Employee's duties and responsibilities hereunder. The foregoing limitations shall not be construed as prohibiting Employee from making personal investments in such form or manner as will neither require his services in the operation or affairs of the companies or enterprises in which such investments are made nor violate the terms of this paragraph 3. Employee will not, during the period of his employment by or with Employer, and for a period of two (2) years immediately following the termination of his employment under this Agreement, except as provided belowCorporation, directly or indirectly, for himself or on behalf of or in conjunction with any other person, persons, company, partnership, corporation or business of whatever nature:
(i) engage, either as an officerindividual, director, shareholder, owner, partner, a partner or a joint venturer, or in a managerial any other capacity, whether as an employee, independent contractor, consultant (i) invest (other than investments in publicly-owned companies which constitute not more than 1% of the voting securities of any such company) or advisor, or as a sales representative, engage in any business in direct competition that is competitive with Employer that of the Corporation or its affiliates, (ii) accept employment with or render services to a competitor of the Company within 100 miles of where the Company Corporation or any of its subsidiaries conduct businessaffiliates as a director, including officer, agent, employee or consultant, (iii) contact, solicit or attempt to solicit or accept business from any territory serviced (A) customers of the Corporation or its affiliates or (B) person or entity whose business the Corporation or its affiliates is soliciting, (iv) contact, solicit or attempt to solicit or accept or direct business that is competitive with such business being conducted by the Company Corporation during Employee's employment under this Agreement from any of the customers of the Corporation or any of such subsidiaries its affiliates, or (v) take any action inconsistent with the "TERRITORY");
(ii) call upon any person who is, at that time, fiduciary relationship of an employee of Employer or the Company (including the respective subsidiaries thereof) in a sales or managerial capacity for the purpose or with the intent of enticing such employee away from or out of the employ of Employer or the Company (including the respective subsidiaries thereof);
(iii) call upon any person or entity which is, at that time, or which has been, within one (1) year prior to that time, a customer of the Company (including the respective subsidiaries thereof) for the purpose of soliciting or selling products or services in direct competition with the Company; or
(iv) call upon any prospective acquisition candidate, on Employee's own behalf or on behalf of any competitor, which candidate was, to Employee's actual knowledge after due inquiry, either called upon by Employer or the Company (including the respective subsidiaries thereof) or for which Employer or the Company made an acquisition analysis for the purpose of acquiring such entity or all or substantially all of such entity's assetshis employer. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Employee from acquiring as a passive investment not more than two percent (2%) of the capital stock of a competing business the stock of which is traded on a national securities exchange or on an over-the -counter or similar market.
(b) Because of the difficulty of measuring economic losses to Employer or the Company as a result of a breach of the foregoing covenant, and because of the immediate and irreparable damage that could be caused to Employer or the Company for which they would have no other adequate remedy, Employee agrees that the foregoing covenant may be enforced by Employer or the Company in the event of breach or threatened breach by Employee, by injunctions, restraining orders and other appropriate equitable relief.
(c) It is agreed by the parties that the foregoing covenants As used in this paragraph 3 impose a reasonable restraint on Employee in light of the activities and business of the Company (including the Company's subsidiaries) on the date of the execution of this Agreement and the current plans of the Company (including the Company's subsidiaries); but it is also the intent of the Company and Employee that such covenants be construed and enforced in accordance with the changing activities, business and locations of the Company (including the Company's subsidiaries) throughout the term of this covenant, whether before or after the date of termination of the employment of Employee. For example, if, during the term Section 6 of this Agreement, the Company (including the Company's subsidiaries) engages in new and different activities, enters a new business "affiliates" shall mean persons or establishes new locations for its current activities or business in addition to or other than the activities or business enumerated under the Recitals above or the locations currently established therefor, then Employee will be precluded from soliciting the customers or Employees of such new activities or business or from such new location and from directly competing with such new business within 100 miles of its then-established operating location(s) through the term of this covenant. It is further agreed by the parties hereto that, in the event entities that Employee shall cease to be employed hereunder, and shall enter into a business or pursue other activities not in competition with the Company (including the Company's subsidiaries)directly, or similar activities indirectly through one or business in locations more intermediaries, control or are controlled by, or are under common control with, the operation Corporation. For purposes of which, under such circumstances, does not violate clause (i) of paragraph 3(a), Employee shall not be chargeable with a violation of this paragraph 3 if the Company (including the Company's subsidiaries) shall thereafter enter the same, similar or a competitive (i) business, (ii) course of activities or (iii) location, as applicable.
(d) The covenants in this paragraph 3 are severable and separate, and the unenforceability of any specific covenant shall not affect the provisions of any other covenant. Moreover, in the event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth herein are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which the court deems reasonable, and this Agreement shall thereby be reformed.
(e) All of the covenants in this paragraph 3 shall be construed as an agreement independent of any other provision in this Agreement, and a competitor specifically includes persons, firms, sole proprietorships, partnerships, companies, corporations or other entities that market products and/or perform services in direct or indirect competition with those marketed and/or performed by the existence of any claim Corporation or cause of action of Employee against Employer or the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Employer or the Company of such covenants. It is specifically agreed that the period of two (2) years following termination of employment stated at the beginning of this paragraph 3, during which the agreements and covenants of Employee made in this paragraph 3 shall be effective, shall be computed by excluding from such computation any time during which Employee is in violation of any provision of this paragraph 3its affiliates within Restricted Area.
Appears in 1 contract
Samples: Employment Agreement (Avidyn Inc)
Noncompetition Agreement. (a) Employee shall not, during the term of his employment hereunder, be engaged in any other business activity pursued for gain, profit or other pecuniary advantage if such activity interferes with Employee's ’s duties and responsibilities hereunder. The foregoing limitations shall not be construed as prohibiting Employee from making personal investments in such form or manner as will neither require his services in the operation or affairs of the companies or enterprises in which such investments are made nor violate the terms of this paragraph 3. Employee will not, during the period of his employment by or with EmployerCompany, and for a period of two (2) years immediately following the termination of his employment under this Agreement, except as provided below, directly or indirectly, for himself or on behalf of or in conjunction with any other person, persons, company, partnership, corporation or business of whatever nature:
(i) engage, as an officer, director, shareholder, owner, partner, joint venturer, or in a managerial capacity, whether as an employee, independent contractor, consultant or advisor, or as a sales representative, in any business in direct competition with Employer Company or the Company any of its subsidiaries and affiliates within 100 miles of where the Company or any of its subsidiaries and affiliates conduct business, including any territory serviced by the Company or any of such subsidiaries (the "“TERRITORY"”);
(ii) call upon any person who is, at that time, an employee of Employer Company or the Company (including the respective any of its subsidiaries thereof) in a or affiliates sales or managerial capacity for the purpose or with the intent of enticing such employee away from or out of the employ of Employer Company or the Company (including the respective any of its subsidiaries thereof)or affiliates or any its subsidiaries or affiliates;
(iii) call upon any person or entity which is, at that time, or which has been, within one (1) year prior to that time, a customer of the Company (including the respective or any of its subsidiaries thereof) or affiliates for the purpose of soliciting or selling products or services in direct competition with the CompanyCompany or any of its subsidiaries or affiliates; or
(iv) call upon any prospective acquisition candidate, on Employee's ’s own behalf or on behalf of any competitor, which candidate was, to Employee's ’s actual knowledge after due inquiry, either called upon by Employer Company or the Company (including the respective any of its subsidiaries thereof) or affiliates or for which Employer or the Company made Employee participated in an acquisition analysis for the purpose of acquiring such entity or all or substantially all of such entity's ’s assets. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Employee from acquiring as a passive investment not more than two percent (2%) of the capital stock of a competing business the stock of which is traded on a national securities exchange or on an over-the -counter or similar market.
(b) Because of the difficulty of measuring economic losses to Employer Company or the Company any of its subsidiaries or affiliates as a result of a breach of the foregoing covenant, and because of the immediate and irreparable damage that could be caused to Employer Company or the Company any of its subsidiaries or affiliates for which they would have no other adequate remedy, Employee agrees that the foregoing covenant may be enforced by Employer Company or the Company any of its subsidiaries or affiliates in the event of breach or threatened breach by Employee, by injunctions, restraining orders and other appropriate equitable relief.
(c) It is agreed by the parties that the foregoing covenants in this paragraph 3 impose a reasonable restraint on Employee in light of the activities and business of the Company (including the Company's subsidiaries) on the date of the execution of this Agreement and the current plans of the Company (including the Company's subsidiaries)or any of its subsidiaries or affiliates; but it is also the intent of the Company and Employee that such covenants be construed and enforced in accordance with the changing activities, business and locations of the Company (including the Company's subsidiaries) or any of its subsidiaries or affiliates throughout the term of this covenant, whether before or after the date of termination of the employment of Employee. For example, if, during the term of this Agreement, the Company (including the Company's subsidiaries) or any of its subsidiaries or affiliates engages in new and different activities, enters a new business or establishes new locations for its current activities or business in addition to or other than the activities or business enumerated under the Recitals above or the locations currently established therefor, then Employee will be precluded from soliciting the customers or Employees of such new activities or business or from such new location and from directly competing with such new business within 100 miles of its then-established operating location(s) through the term of this covenant. It is further agreed by the parties hereto that, in the event that Employee shall cease to be employed hereunder, and shall enter into a business or pursue other activities not in competition with the Company (including the Company's subsidiaries)or any of its subsidiaries or affiliates, or similar activities or business in locations the operation of which, under such circumstances, does not violate clause (i) of paragraph 3(a), Employee shall not be chargeable with a violation of this paragraph 3 if the Company (including the Company's subsidiaries) or any of its subsidiaries or affiliates shall thereafter enter the same, similar or a competitive (i) business, (ii) course of activities or (iii) location, as applicable.
(d) The covenants in this paragraph 3 are severable and separate, and the unenforceability of any specific covenant shall not affect the provisions of any other covenant. Moreover, in the event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth herein are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which the court deems reasonable, and this Agreement shall thereby be reformed.
(e) All of the covenants in this paragraph 3 shall be construed as an agreement independent of any other provision in this Agreement, and the existence of any claim or cause of action of Employee against Employer Company or the Companyany of its subsidiaries or affiliates, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Employer Company or the Company any of its subsidiaries or affiliates of such covenants. It is specifically agreed that the period of two (2) years following termination of employment stated at the beginning of this paragraph 3, during which the agreements and covenants of Employee made in this paragraph 3 shall be effective, shall be computed by excluding from such computation any time during which Employee is in violation of any provision of this paragraph 3.
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