Noncompetition and Non-solicitation. Employee hereby acknowledges that it is necessary for the General Partner to protect its trade secrets, Confidential Information, and goodwill and other business interests. Employee acknowledges and agrees that the General Partner would be irreparably damaged if Employee, given his important position and intimate knowledge of the General Partner’s business and strategic plans, were to breach or otherwise violate this Section 6 and that any such breach or violation would result in a significant and material loss of goodwill by the General Partner. Therefore, Employee agrees that: (a) While employed by the Company as CEO of the General Partner, Employee shall not in any area: (i) where Employee has conducted business for the General Partner; or (ii) where Employee has gained knowledge of Confidential Information of the General Partner by virtue of his position as CEO (the "Restricted Territory"), directly or indirectly own, manage, control, participate in, consult with, render services for, or in any other manner engage in the business of providing, directly or indirectly: (x) marine and other transportation (including the provision of tank trucking services to third parties), terminalling, refining, processing, distribution and midstream logistical services for hydrocarbon products and by-products, including, without limitation, the refining of crude oil into various grades and quantities of naphthenic lubricants, distillates, asphalt flux and other intermediate cuts, (y) manufacturing and marketing fertilizers and related sulfur-based products and (z) lubricants blending and packaging business (collectively, the "Business"); provided that nothing herein shall prohibit Employee from (i) being a passive owner of not more than 5% of the outstanding stock of any class of a corporation which is publicly traded so long as Employee does not have any active participation in the business of such corporation, or (ii) remaining an employee of the Company or assisting the Company with its business after the Termination Date. Employee acknowledges that the Business has been and may be conducted throughout the Restricted Territory and that the geographic restrictions set forth above are reasonable and necessary to protect the goodwill of the Business. (b) During the Employment Term and for a period of twenty-four (24) months after Employee’s termination of employment, except on behalf of the General Partner, Employee shall not, directly or indirectly through another Person, (i) solicit or accept business from, participate in the solicitation of business from, consult with, or render services to any Person that is a current known client or customer of the General Partner, or (ii) induce or attempt to induce any client, customer or other business relation of the General Partner to cease doing or decrease their business with the General Partner, or in any way interfere with the relationship between any such client, customer or other business relation and the General Partner. (c) During the Employment Term and for a period of twenty-four (24) months after Employee’s termination of employment, Employee shall not, directly or indirectly through another Person, (i) induce or attempt to induce any employee of the Company who provides services to the General Partner to leave the employ of the Company, or in any way interfere with the relationship between the General Partner and any employee providing services to the General Partner or (ii) solicit or hire any person who was an employee of the Company providing services to the General Partner at any time during the six-month period immediately prior to the date on which such solicitation or hiring would take place. (d) If, at the time of enforcement of Section 5 or this Section 6, a court holds that the restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum duration, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area and that the court shall be allowed to revise the restrictions contained herein to cover the maximum duration, scope and area permitted by law. Because Employee's services are unique as CEO and because Employee has access to Confidential Information, the parties hereto agree that money damages would not be an adequate remedy for any breach of this Agreement. Therefore, in the event of a breach or threatened breach of this Agreement, the Company or the General Partner or their successors or assigns may, in addition to other rights and remedies existing in their favor, apply to any court of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce, or prevent any violations of, the provisions hereof (without posting a bond or other security). (e) Employee acknowledges that the provisions of this Section 6 are in consideration of (i) Employee's promotion to the CEO position with the General Partner; and (ii) additional good and valuable consideration as set forth in this Agreement. Employee agrees and acknowledges that the restrictions contained in Section 5 or this Section 6 do not preclude Employee from earning a livelihood, nor do they unreasonably impose limitations on Employee's ability to earn a living. Employee acknowledges (i) that the business of the General Partner will be conducted throughout the Restricted Territory, (ii) notwithstanding the state of formation or principal office of the General Partner, or any of their respective Employees or employees (including Employee), it is expected that the General Partner will conduct business activities and have valuable business relationships within its industry throughout the Restricted Territory, and (iii) as part of Employee's responsibilities, Employee may be traveling throughout the Restricted Territory in furtherance of the General Partner's business and its relationships. Employee acknowledges that the potential harm to the General Partner of the non‑enforcement of Section 5 or this Section 6 outweighs any potential harm to Employee of its enforcement by injunction or otherwise. Employee acknowledges that Employee has carefully read this Agreement and has given careful consideration to the restraints imposed upon Employee by this Agreement and is in full accord as to their necessity for the reasonable and proper protection of confidential and proprietary information of the General Partner now existing or to be developed in the future. Employee acknowledges that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area.
Appears in 1 contract
Samples: Employment Agreement (Martin Midstream Partners L.P.)
Noncompetition and Non-solicitation. Employee hereby acknowledges The Sellers acknowledge and agree that it is necessary for the General Partner Acquired Company has over many years devoted substantial time, effort and resources to protect its developing the Acquired Company’s trade secrets and other confidential and proprietary information, as well as the Acquired Company’s relationships with customers, suppliers, employees and others doing business with the Acquired Company; that such relationships, trade secrets and other information are vital to the successful conduct of the Acquired Company’s businesses in the future; that because of the Sellers’ access to the Acquired Company’s confidential information and trade secrets, Confidential Information, the Sellers would be in a unique position to divert business from the Acquired Company and goodwill and to commit irreparable damage to the Acquired Company were the Sellers to be allowed to compete with the Acquired Company or to commit any of the other business interests. Employee acknowledges and agrees acts prohibited below; that the General Partner would be irreparably damaged if Employee, given his important position and intimate knowledge enforcement of the General Partner’s business and strategic plans, were to breach or otherwise violate this Section 6 restrictive covenants against the Sellers would not impose any undue burden upon any Seller; and that any such breach or violation would result in the ability to enforce the restrictive covenants against the Sellers is a significant material inducement to the decision of the Purchasers to consummate the transactions contemplated by this Agreement. Accordingly, during the period commencing on the Closing Date and material loss of goodwill by ending twelve (12) months from the General Partner. Therefore, Employee agrees that:Closing Date (the "Restricted Period"):
(a) While employed by the Company as CEO no Seller or any Affiliate of the General Partner, Employee shall not in any area: (i) where Employee has conducted business for the General Partner; or (ii) where Employee has gained knowledge of Confidential Information of the General Partner by virtue of his position as CEO (the "Restricted Territory"), directly or indirectly own, manage, control, participate in, consult with, render services for, or in any other manner engage in the business of providingSeller will, directly or indirectly: (x) marine and , engage in any business anywhere in the world that develops, manufactures, produces, markets, sells or distributes any products or provides any services of the kind developed, under development, manufactured, produced, marketed, sold, distributed or provided by the Acquired Company, or own an interest in, manage, operate, join, control, lend money or render financial or other transportation (including assistance to, be employed by, or participate in or be connected with, as a partner, stockholder, consultant or otherwise, any Person that competes with the provision Purchaser or the Acquired Company in developing, manufacturing, producing, marketing, selling or distributing any products or providing any services of tank trucking services the kind developed, under development, manufactured, produced, marketed, sold, distributed or provided by the Acquired Company, provided that in no event will the Purchasers, directly or indirectly, form a new entity or will maintain any material equity participation in any other entity, in each case the primary purpose of which is to third parties)compete with the Acquired Company until December 31, terminalling, refining, processing, distribution and midstream logistical services for hydrocarbon products and by-products, including, without limitation, 2019. The Restricted Period will be extended by the refining length of crude oil into various grades and quantities any period during which the Seller is in breach of naphthenic lubricants, distillates, asphalt flux and other intermediate cuts, (y) manufacturing and marketing fertilizers and related sulfur-based products and (z) lubricants blending and packaging business (collectively, the "Business"terms of this Section 5.7(a); provided that nothing herein shall prohibit Employee from (i) being a passive owner of not more than 5% of the outstanding stock of any class of a corporation which is publicly traded so long as Employee does not have any active participation in the business of such corporation, or (ii) remaining an employee of the Company or assisting the Company with its business after the Termination Date. Employee acknowledges that the Business CHIDMS1/2982920.1 [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and may be conducted throughout filed separately with the Restricted Territory Securities and that the geographic restrictions set forth above are reasonable and necessary to protect the goodwill of the Business.
Exchange Commission. (b) During the Employment Term and no Seller or any Affiliate of Seller will directly or indirectly, for a period of twenty-four (24) months after Employee’s termination of employment, except itself or on behalf of the General Partner, Employee shall not, directly or indirectly through another in conjunction with any other Person, (i) solicit call upon any employee who is, at the time the individual is called upon, an employee of the Purchasers or accept business from, participate in the solicitation Acquired Company for the purpose or with the intent of business from, consult withsoliciting such employee away from or out of the employ of the Purchasers or the Acquired Company, or render services employ or offer employment to any Person that individual who was or is employed by the Purchasers or the Acquired Company unless such individual will have ceased to be employed by the Purchasers and the Acquired Company for a current known client or customer period of the General Partner, at least twelve months prior thereto or (ii) cause, induce or attempt to cause or induce any clientcustomer, customer strategic partner, supplier, distributor, landlord or other business relation of the General Partner to cease others doing or decrease their business with the General Partner, Purchasers or in any way interfere the Acquired Company to cease or reduce the extent of its business relationship with the relationship between Purchasers or the Acquired Company or to deal with any such client, customer or other business relation and the General Partner.
(c) During the Employment Term and for a period of twenty-four (24) months after Employee’s termination of employment, Employee shall not, directly or indirectly through another Person, (i) induce or attempt to induce any employee competitor of the Company who provides services Purchasers or the Acquired Company; provided, however, that this Section 5.7(b) will not be deemed to prohibit the General Partner Seller from engaging in general media advertising or solicitation that may be targeted to leave the employ a particular geographic or technical area but that is not targeted towards employees of the Company, or in any way interfere with the relationship between the General Partner and any employee providing services to the General Partner or (ii) solicit or hire any person who was an employee of the Company providing services to the General Partner at any time during the six-month period immediately prior to the date on which such solicitation or hiring would take place.
(d) If, at the time of enforcement of Section 5 or this Section 6, a court holds that the restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum duration, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area and that the court shall be allowed to revise the restrictions contained herein to cover the maximum duration, scope and area permitted by law. Because Employee's services are unique as CEO and because Employee has access to Confidential Information, the parties hereto agree that money damages would not be an adequate remedy for any breach of this Agreement. Therefore, in the event of a breach or threatened breach of this Agreement, the Company Purchasers or the General Partner or their successors or assigns may, in addition to other rights and remedies existing in their favor, apply to any court of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce, or prevent any violations of, the provisions hereof (without posting a bond or other security).
(e) Employee acknowledges that the provisions of this Section 6 are in consideration of (i) Employee's promotion to the CEO position with the General PartnerAcquired Company; and (ii) additional good and valuable consideration as set forth in this Agreement. Employee agrees and acknowledges that the restrictions contained in Section 5 or this Section 6 do not preclude Employee from earning a livelihood, nor do they unreasonably impose limitations on Employee's ability to earn a living. Employee acknowledges (i) that the business of the General Partner will be conducted throughout the Restricted Territory, (ii) notwithstanding the state of formation or principal office of the General Partner, or any of their respective Employees or employees (including Employee), it is expected that the General Partner will conduct business activities and have valuable business relationships within its industry throughout the Restricted Territory, and (iii) as part of Employee's responsibilities, Employee may be traveling throughout the Restricted Territory in furtherance of the General Partner's business and its relationships. Employee acknowledges that the potential harm to the General Partner of the non‑enforcement of Section 5 or this Section 6 outweighs any potential harm to Employee of its enforcement by injunction or otherwise. Employee acknowledges that Employee has carefully read this Agreement and has given careful consideration to the restraints imposed upon Employee by this Agreement and is in full accord as to their necessity for the reasonable and proper protection of confidential and proprietary information of the General Partner now existing or to be developed in the future. Employee acknowledges that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area.and
Appears in 1 contract
Noncompetition and Non-solicitation. Employee hereby acknowledges that it is necessary for the General Partner to protect its trade secrets, Confidential Information, and goodwill and other business interests. Employee acknowledges and agrees that the General Partner would be irreparably damaged if Employee, given his important position and intimate knowledge of the General Partner’s business and strategic plans, were to breach or otherwise violate this Section 6 and that any such breach or violation would result in a significant and material loss of goodwill by the General Partner. Therefore, Employee agrees that:
(a) While employed During my employment with the Company I shall devote my full working time, skill, energy and efforts to the Company. During my employment with the Company and for a period of twelve (12) months after termination of my employment for any reason other than due to layoff or termination by the Company without Cause (collectively, the “Non-Compete Period”), I shall not, on my own behalf, or as CEO owner, manager, stockholder, consultant, director, officer, or employee of any business entity (except as a holder of not more than one (1%) percent of the General Partnerstock of a publicly held company) participate, Employee directly or indirectly, in any capacity involving any of the services that I provided to the Company at any time during my employment or, with respect to the portion of the Non-Compete Period that follows the termination of my employment, during the last two years of my employment, in any business that is a Competitive Business anywhere in the Restricted Area. Notwithstanding the foregoing, Section 6(a) shall not in any areapreclude me from becoming an employee of, or from otherwise providing services to, a separate division or operating unit of a multi-divisional business or enterprise (a “Division”) if: (i) where Employee has conducted business for the General Partner; Division by which I am employed, or to which I provide services, is not a Competitive Business, (ii) where Employee has gained knowledge of Confidential Information of the General Partner by virtue of his position as CEO (the "Restricted Territory"), directly or indirectly own, manage, control, participate in, consult with, render services for, or in any other manner engage in the business of providingI do not provide services, directly or indirectly: , to any other division or operating unit of such multi-divisional business or enterprise which is a Competitive Business (x) marine individually, a “Competitive Division” and other transportation (including the provision of tank trucking services to third parties), terminalling, refining, processing, distribution and midstream logistical services for hydrocarbon products and by-products, including, without limitation, the refining of crude oil into various grades and quantities of naphthenic lubricants, distillates, asphalt flux and other intermediate cuts, (y) manufacturing and marketing fertilizers and related sulfur-based products and (z) lubricants blending and packaging business (collectively, the "Business"); provided that nothing herein shall prohibit Employee from “Competitive Divisions”) and (iiii) being a passive owner of not more the Competitive Divisions, in the aggregate, accounted for less than 5% one-third of the outstanding stock multi-divisional business or enterprises’ consolidated revenues for the fiscal year, and each subsequent quarterly period, prior to my commencement of any class employment with the Division. I hereby acknowledge that my receipt of a corporation which is publicly traded so long as Employee does not have any active participation the grant of equity set forth in the business of such corporationOffer Letter is contingent upon my agreement to the non-competition provisions set forth herein, or (ii) remaining an employee and I further acknowledge that my receipt of the Company or assisting the Company with its business after the Termination Date. Employee acknowledges that the Business has been and may be conducted throughout the Restricted Territory and that the geographic restrictions cash severance payments set forth above in the Offer Letter are contingent upon my continued compliance with the non-competition provisions set forth herein. I acknowledge and agree that such consideration is fair and reasonable and necessary to protect the goodwill of the Businessin exchange for my compliance with such non-competition obligations.
(b) During my employment with the Employment Term Company and for a period of twenty-four (24) 12 months after Employee’s termination of employmentmy employment for any reason (the “Non-Solicitation Period”), except on behalf of the General Partner, Employee I shall not, directly or indirectly through another Personindirectly, (i) solicit solicit, induce, attempt to hire or accept business from, participate in the solicitation of business from, consult withengage, or render services to hire or engage any Person that is a current known client or customer employee of the General PartnerCompany (or any person who may have been employed by the Company during the two years preceding the restricted activity), or (ii) induce or assist in such solicitation, inducement, attempt to induce hire or engage or hiring or engagement by any client, customer other person or other business relation entity or encourage any such employee or any independent contractor of the General Partner Company (or any person or entity who may have been engaged by the Company as an independent contractor during the two years preceding the restricted activity) to cease doing terminate or decrease their business diminish his, her or its employment or engagement with the General Partner, or in any way interfere with the relationship between any such client, customer or other business relation and the General PartnerCompany.
(c) During the Employment Term and for a period of twentyNon-four (24) months after Employee’s termination of employmentSolicitation Period, Employee I shall not, directly or indirectly through another Person, (i) induce solicit or attempt to induce encourage any employee customer, vendor, supplier or other business partner of the Company who provides services to the General Partner terminate or diminish its relationship with them; or (ii) seek to leave the employ persuade any such customer, vendor, supplier or other business partner, or any prospective customer, vendor, supplier or other business partner of the Company, to conduct with anyone else any business or in any way interfere activity which such customer, vendor, supplier or other business partner conducts or could conduct, or such prospective customer, vendor, supplier or other business partner could conduct, with the relationship between the General Partner Company; provided, however, that these restrictions shall apply only with respect to those persons and any employee providing services to the General Partner entities who are or (ii) solicit have been a customer, vendor, supplier or hire any person who was an employee other business partner of the Company providing services to the General Partner at any time during within the six-month period immediately prior to two years preceding the date activity restricted by this Section 6(c) or whose business has been solicited on which behalf of the Company by any of its officers, employees or agents within such solicitation two year period, other than by form letter, blanket mailing or hiring would take placepublished advertisement.
(d) If, at the time of enforcement For purposes of Section 5 or this Section 6, a court holds that the restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum duration, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area and that the court shall be allowed to revise the restrictions contained herein to cover the maximum duration, scope and area permitted by law. Because Employee's services are unique as CEO and because Employee has access to Confidential Information, the parties hereto agree that money damages would not be an adequate remedy for any breach of this Agreement. Therefore, in the event of a breach or threatened breach of this Agreement, the Company or the General Partner or their successors or assigns may, in addition to other rights and remedies existing in their favor, apply to any court of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce, or prevent any violations of, the provisions hereof (without posting a bond or other security).
(e) Employee acknowledges that the provisions of this Section 6 are in consideration of (i) Employee's promotion to the CEO position with the General Partner; and (ii) additional good and valuable consideration as set forth in this Agreement. Employee agrees and acknowledges that the restrictions contained in Section 5 or this Section 6 do not preclude Employee from earning a livelihood, nor do they unreasonably impose limitations on Employee's ability to earn a living. Employee acknowledges (i) that the business of the General Partner will be conducted throughout the Restricted Territory, (ii) notwithstanding the state of formation or principal office of the General Partner, or any of their respective Employees or employees (including Employee), it is expected that the General Partner will conduct business activities and have valuable business relationships within its industry throughout the Restricted Territory, and (iii) as part of Employee's responsibilities, Employee may be traveling throughout the Restricted Territory in furtherance of the General Partner's business and its relationships. Employee acknowledges that the potential harm to the General Partner of the non‑enforcement of Section 5 or this Section 6 outweighs any potential harm to Employee of its enforcement by injunction or otherwise. Employee acknowledges that Employee has carefully read this Agreement and has given careful consideration to the restraints imposed upon Employee by this Agreement and is in full accord as to their necessity for the reasonable and proper protection of confidential and proprietary information of the General Partner now existing or to be developed in the future. Employee acknowledges that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area.6(a):
Appears in 1 contract
Noncompetition and Non-solicitation. Employee hereby acknowledges that it is necessary for From and after the General Partner to protect its trade secrets, Confidential Information, and goodwill and other business interests. Employee acknowledges and agrees that the General Partner would be irreparably damaged if Employee, given his important position and intimate knowledge of the General Partner’s business and strategic plans, were to breach or otherwise violate this Section 6 and that any such breach or violation would result in a significant and material loss of goodwill by the General Partner. Therefore, Employee agrees thatClosing Date:
(a) While employed by Sellers will refrain from, either alone or in conjunction with any other Person, or directly or indirectly through its present or future Affiliates, employees or consultants, for a period of five (5) years from the Company as CEO of the General Partner, Employee shall not in any area: Closing Date:
(i) where employing, engaging or seeking to employ or engage any Person who had been an Employee has conducted business for or employee of the General Partner; Corporation or any of its Affiliates as of the date of this Agreement and as of the Closing Date;
(ii) where Employee has gained knowledge of Confidential Information causing or attempting to cause (A) any client, customer or supplier of the General Partner by virtue Business to terminate or materially reduce its business with the Corporation or any of his position its Affiliates or (B) any officer, employee or consultant of the Corporation or any of its Affiliates engaged in the Business to resign or sever a relationship with the Corporation or any of its Affiliates; and
(iii) participating or engaging in (other than through the ownership of 5% or less of any class of securities registered under the Securities Exchange Act of 1934, as CEO amended) the slot-machine routing business within a sixty (60) mile radius from any location where the Corporation currently conducts the Business, including the Existing Locations.
(b) The provisions of Section 10.6(a) shall not be deemed to preclude Sellers from owning and investing in those casino properties set forth on Schedule 10.6 located in Deadwood, South Dakota (the "Restricted Territory"“Existing Locations”). At all times following the Closing, directly the Purchaser, through its ownership of the Corporation, shall provide slot machine services at each of the Existing Locations pursuant to existing agreements entered into with the owners or indirectly ownoperators (the “Existing Agreements”). At all times following the Closing, manageeach of the Sellers hereby covenants and agrees to use their collective best efforts to assist the Purchaser and the Corporation to maintain the current business relationship between the Corporation and the owners or operators at each of the Existing Locations pursuant to the Existing Agreements. In furtherance of the foregoing sentence, controleach of the Sellers shall use their collective best efforts to encourage the owners or operators at each of the Existing Locations to maintain its existing business relationship with the Corporation at all times following the Closing. In the event the business relationship with the Corporation at any of the Existing Locations is terminated, participate infollowing such termination Sellers will in no way assist, consult withadvise or otherwise counsel such owners or operators in any manner whatsoever including, render without limitation, with respect to slot machines or services forrelated thereto.
(c) From the date of execution of this Agreement through the Closing Date, the Sellers will refrain from, either alone or in conjunction with any other manner engage in the business of providingPerson (including, without limitation, present or future Affiliates, employees or consultants), directly or indirectly: (x) marine and other transportation (including the provision of tank trucking services to third parties), terminalling, refining, processing, distribution and midstream logistical services for hydrocarbon products and by-products, including, without limitation, the refining of crude oil into various grades and quantities of naphthenic lubricants, distillates, asphalt flux and other intermediate cuts, (y) manufacturing and marketing fertilizers and related sulfur-based products and (z) lubricants blending and packaging business (collectively, the "Business"); provided that nothing herein shall prohibit Employee from (i) being a passive owner of not more than 5% of the outstanding stock of employing, engaging or seeking to employ or engage any class of a corporation which Person that is publicly traded so long as Employee does not have any active participation in the business of such corporation, or (ii) remaining an employee of the Company Corporation or assisting the Company with any of its business after the Termination Date. Employee acknowledges that the Business has been and may be conducted throughout the Restricted Territory and that the geographic restrictions set forth above are reasonable and necessary to protect the goodwill Affiliates as of the Business.
(b) During the Employment Term date of this Agreement; and for a period of twenty-four (24) months after Employee’s termination of employment, except on behalf of the General Partner, Employee shall not, directly or indirectly through another Person, (i) solicit or accept business from, participate in the solicitation of business from, consult with, or render services to any Person that is a current known client or customer of the General Partner, or (ii) induce causing or attempt attempting to induce cause (A) any client, customer or other business relation supplier of the General Partner Business to cease doing terminate or decrease their materially reduce its business with the General PartnerCorporation or any of its Affiliates or (B) any officer, employee or consultant of the Corporation or any of its Affiliates engaged in any way interfere the Business to resign or sever a relationship with the relationship between Corporation or any such client, customer or other business relation and the General Partner.
(c) During the Employment Term and for a period of twenty-four (24) months after Employee’s termination of employment, Employee shall not, directly or indirectly through another Person, (i) induce or attempt to induce any employee of the Company who provides services to the General Partner to leave the employ of the Company, or in any way interfere with the relationship between the General Partner and any employee providing services to the General Partner or (ii) solicit or hire any person who was an employee of the Company providing services to the General Partner at any time during the six-month period immediately prior to the date on which such solicitation or hiring would take placeits Affiliates.
(d) If, at the time of enforcement of Section 5 or this Section 6, a court holds that the restrictions stated herein are unreasonable under circumstances then existing, the parties hereto Sellers agree that the maximum duration, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area and that the court shall be allowed to revise the restrictions contained herein to cover the maximum duration, scope and area permitted by law. Because Employee's services are unique as CEO and because Employee has access to Confidential Information, the parties hereto agree that money damages would not be an adequate any remedy at Law for any breach of the provisions of this Agreement. ThereforeSection would be inadequate, and accordingly, Sellers hereby consent to the granting by any court of an injunction or other equitable relief, without the necessity of actual monetary loss being proved or posting a bond, in order that the event of a breach or threatened breach of this Agreement, the Company or the General Partner or their successors or assigns may, in addition to other rights and remedies existing in their favor, apply to any court of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce, or prevent any violations of, the such provisions hereof (without posting a bond or other security).
(e) Employee acknowledges that the provisions of this Section 6 are in consideration of (i) Employee's promotion to the CEO position with the General Partner; and (ii) additional good and valuable consideration as set forth in this Agreement. Employee agrees and acknowledges that the restrictions contained in Section 5 or this Section 6 do not preclude Employee from earning a livelihood, nor do they unreasonably impose limitations on Employee's ability to earn a living. Employee acknowledges (i) that the business of the General Partner will be conducted throughout the Restricted Territory, (ii) notwithstanding the state of formation or principal office of the General Partner, or any of their respective Employees or employees (including Employee), it is expected that the General Partner will conduct business activities and have valuable business relationships within its industry throughout the Restricted Territory, and (iii) as part of Employee's responsibilities, Employee may be traveling throughout the Restricted Territory in furtherance of the General Partner's business and its relationships. Employee acknowledges that the potential harm to the General Partner of the non‑enforcement of Section 5 or this Section 6 outweighs any potential harm to Employee of its enforcement by injunction or otherwise. Employee acknowledges that Employee has carefully read this Agreement and has given careful consideration to the restraints imposed upon Employee by this Agreement and is in full accord as to their necessity for the reasonable and proper protection of confidential and proprietary information of the General Partner now existing or to be developed in the future. Employee acknowledges that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical areaeffectively restrained.
Appears in 1 contract
Samples: Stock Purchase Agreement (Nevada Gold & Casinos Inc)
Noncompetition and Non-solicitation. Employee hereby acknowledges that it is necessary for the General Partner to protect its trade secrets, Confidential Information, and goodwill and other business interests. Employee acknowledges and agrees that the General Partner would be irreparably damaged if Employee, given his important position and intimate knowledge of the General Partner’s business and strategic plans, were to breach or otherwise violate this Section 6 and that any such breach or violation would result in a significant and material loss of goodwill by the General Partner. Therefore, Employee agrees that:
(a) While employed The Executive hereby acknowledges and recognizes that, during the Employment Period, the Executive will be privy to trade secrets and confidential proprietary information critical to the Company's business, and the Executive further acknowledges and recognizes that the Company would find it extremely difficult or impossible to replace the Executive and, accordingly, the Executive agrees that, in consideration of the benefits to be received by the Company as CEO Executive hereunder, the Executive will not from and after the date hereof until 18 months after the termination of the General Partner, Employee shall not in any area: Employment Period (i) where Employee engage in the development, production, marketing or sale of products or services that directly compete or, upon commercialization, would directly compete with products of the Company being developed (so long as such development has conducted not been abandoned), marketed or sold at the time of the Executive's termination (a "Conflicting Product or Service," and such business for the General Partner; or activity being hereinafter called a "Competing Business"), whether such engagement shall be as an officer, director, owner, employee, partner, affiliate, consultant or other participant in any Competing Business or (ii) where Employee has gained knowledge assist others in engaging in any Competing Business in the manner described in the foregoing clause (i); provided, however, that in the case of Confidential Information a Termination Without Cause, a Termination for Good Reason or, subject to Section 13(d) hereof, the non-extension of the General Partner Agreement Term as a result of a notice to such effect (a "Non-Extension Notice") given by virtue the Executive in accordance with the second sentence of his position as CEO Section 2(a) hereof, the prohibitions of the foregoing clauses (i) and (ii) shall terminate upon the "Restricted Territory")first anniversary of the termination of the Employment Period and that, directly or indirectly ownsubject to Section 13(d) hereof, manage, control, participate in, consult with, render services for, or in any other manner engage in the business case of providing, directly or indirectly: (x) marine and other transportation (including the provision nonextension of tank trucking services to third parties), terminalling, refining, processing, distribution and midstream logistical services for hydrocarbon products and bythe Agreement Term as a result of a Non-products, including, without limitationExtension Notice given by the Company, the refining prohibitions of crude oil into various grades the foregoing clauses (i) and quantities (ii) shall terminate upon the six-month anniversary of naphthenic lubricantsthe termination of the Employment Period. Notwithstanding the foregoing, distillatesin the event the Executive's employment is terminated pursuant to a Termination Without Cause or a Termination for Good Reason within one year following a Change in Control, asphalt flux and other intermediate cuts, the term "Competing Business" as used in this Agreement shall not include any business or activity that was not conducted or under development by the Company immediately prior to the effective date of a Change in Control. The foregoing provisions of this clause (a) shall not (y) manufacturing and marketing fertilizers and related sulfur-based products and prohibit the Executive from working for a division or other business unit of an organization involved with a Conflicting Product or Service provided such division or business unit is not itself involved with a Conflicting Product or Service, or (z) lubricants blending and packaging business apply to the ownership by the Executive of publicly-traded voting securities of any corporation representing less than one percent (collectively, the "Business"); provided that nothing herein shall prohibit Employee from (i1%) being a passive owner of not more than 5% of the combined voting power of the then outstanding stock voting securities of any class of a such corporation which is publicly traded so long as Employee does not have any active participation entitled to vote generally in the business election of such corporation, or (ii) remaining an employee of the Company or assisting the Company with its business after the Termination Date. Employee acknowledges that the Business has been and may be conducted throughout the Restricted Territory and that the geographic restrictions set forth above are reasonable and necessary to protect the goodwill of the Businessdirectors.
(b) During any period subsequent to the Employment Term and for a period Period that the restrictive provisions of twenty-four (24) months after Employee’s termination of this Section 13 apply to the Executive, the Executive obtains employment, except on behalf or the employment responsibilities of the General PartnerExecutive change in any material respect, Employee shall notthe Executive shall, directly within 15 days of obtaining such employment or indirectly through another Personof any such change, (i) solicit or accept business from, participate in notify the solicitation of business from, consult with, or render services to any Person that is a current known client or customer Company of the General Partner, facts and circumstances of such employment or (ii) induce or attempt change in responsibility and provide the Company with such additional information as the Company may reasonably request in order for the Company to induce any client, customer or other business relation of verify compliance by the General Partner to cease doing or decrease their business Executive with the General Partner, or in any way interfere with the relationship between any such client, customer or other business relation and the General Partnerprovisions of this Section 13.
(c) During The Employee will not, at any time during or after the Employment Term and for a period of twenty-four (24) months after Employee’s termination of employmentPeriod, Employee shall not, directly or indirectly through another Person, (i) induce or attempt to induce any employee other employees of the Company who provides services or any subsidiary thereof to terminate their employment with the General Partner to leave the employ of the Company, Company or any subsidiary thereof or engage in any way interfere with Competing Business; provided, however, that the relationship between foregoing shall not prohibit the General Partner and any employee providing services to Executive from terminating the General Partner or (ii) solicit or hire any person who was employment of an employee of the Company providing services to the General Partner at any time during the sixEmployment Period in the good-month period immediately prior to faith exercise of the date on which such solicitation or hiring would take placeExecutive's duties hereunder.
(d) If, at In the time of enforcement of Section 5 or this Section 6, a court holds event that the restrictions stated herein are unreasonable under circumstances then existing, Executive's employment with the parties hereto agree that the maximum duration, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area and that the court shall be allowed to revise the restrictions contained herein to cover the maximum duration, scope and area permitted by law. Because Employee's services are unique Company terminates as CEO and because Employee has access to Confidential Information, the parties hereto agree that money damages would not be an adequate remedy for any breach of this Agreement. Therefore, in the event result of a breach or threatened breach of this Agreement, Non-Extension Notice given by the Company or the General Partner or their successors or assigns may, in addition to other rights and remedies existing in their favor, apply to any court of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce, or prevent any violations ofExecutive, the provisions hereof (without posting a bond or other security).Company shall have the option of either:
(e) Employee acknowledges that the provisions of this Section 6 are in consideration of (i) Employee's promotion to requiring compliance by the CEO position Executive with the General Partnerrestrictive covenants set forth in Section 13(a) hereof for the periods specified therein, in which event the Executive shall be entitled to payments from the Company during the respective periods specified in the form of continuation of the Base Salary as in effect immediately prior to such termination payable in accordance with the Company's normal payroll policy (and not in a lump sum); and provided, however, that the Company shall be entitled to reduce on a dollar-for-dollar basis any payment to be made under this Section 13(d)(i) if the Executive is employed during the applicable payment period, with such reduction to be equal to any cash compensation earned by the Executive as a result of such employment, or
(ii) additional good and valuable consideration as waiving compliance by the Executive with the restrictive covenants set forth in this Agreement. Employee agrees and acknowledges that the restrictions contained Section 11(a) hereof, in Section 5 or this Section 6 do not preclude Employee from earning a livelihood, nor do they unreasonably impose limitations on Employee's ability to earn a living. Employee acknowledges (i) that the business of the General Partner will which event no such payments shall be conducted throughout the Restricted Territory, (ii) notwithstanding the state of formation or principal office of the General Partner, or any of their respective Employees or employees (including Employee), it is expected that the General Partner will conduct business activities and have valuable business relationships within its industry throughout the Restricted Territory, and (iii) as part of Employee's responsibilities, Employee may be traveling throughout the Restricted Territory in furtherance of the General Partner's business and its relationships. Employee acknowledges that the potential harm to the General Partner of the non‑enforcement of Section 5 or this Section 6 outweighs any potential harm to Employee of its enforcement by injunction or otherwise. Employee acknowledges that Employee has carefully read this Agreement and has given careful consideration to the restraints imposed upon Employee by this Agreement and is in full accord as to their necessity for the reasonable and proper protection of confidential and proprietary information of the General Partner now existing or to be developed in the future. Employee acknowledges that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical areadue.
Appears in 1 contract
Samples: Employment Agreement (Progenics Pharmaceuticals Inc)
