Noncompetition and Nonsolicitation. (a) In consideration of the benefits to which the Executive may be entitled under the terms of this Agreement, the confidential information relating to the Company and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s employment with the Company (including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not, directly or indirectly: (i) carry on or engage in Competitive Duties (as a director, employee, consultant, contractor or otherwise) within the Restricted Area for any Competing Business; (ii) solicit (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or (iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with the Company or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant of the Company or any of its Subsidiaries or any person who was an employee, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractors, or consultants of the Company or any of its Subsidiaries during the Executive’s employment with the Company). (b) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company. (c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliates. (d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable. (e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law. (f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 5 contracts
Samples: Severance and Change in Control Agreement (Sabine Oil & Gas Corp), Severance and Change in Control Agreement (Forest Oil Corp), Severance and Change in Control Agreement (Forest Oil Corp)
Noncompetition and Nonsolicitation. (a) In consideration For purposes of the benefits to which the Executive may be entitled under the terms Sections 5, 6, 7, 8, 9, 10 and 11 of this Agreement, the confidential information relating references to the Company shall include its subsidiaries and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s employment with the Company Affiliates.
(including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the a) Executive agrees that Executive shall not, while employed or otherwise engaged by an employee of the Company or any of its affiliates, and thereafter for a during the one-year period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason(such collective duration, the Executive will not“Restriction Period”), directly or indirectly, without the prior written consent of the Company:
(i) carry on or (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the world that are principally or primarily in the business of producing Spanish language media content, or owning or operating Hispanic television networks (“Competitive Duties Activities”) or (as a directorB) assisting any Person in any way to do, employeeor attempt to do, consultant, contractor or otherwiseanything prohibited by this Section 5(a)(i)(A) within the Restricted Area for any Competing Business;above; or
(ii) solicit perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company, including (A) soliciting, recruiting or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, hiring (or attempting to inducesolicit, such Covered Customer recruit or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraginghire) any employee, contractor, consultant, supplier, or vendor employees of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with Persons who have worked for the Company during the 12-month period immediately preceding such solicitation, recruitment or any of its Subsidiaries, hiring or attempt thereof; (B) on behalf of a Competing Business, engage, employ, soliciting or encouraging (or attempting to solicit or contact for employment or engagement (or assist another in such activityencourage) any employee, contractor or consultant employee of the Company or any to leave the employment of its Subsidiaries or any person who was an employee, contractor, or consultant the Company; (C) intentionally interfering with the relationship of the Company with any Person who or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive which is employed by the Company for less than twelve (12) months, those persons who were employees, contractorsor otherwise engaged to perform services for, or consultants any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 5(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Executive is in violation of the Company or any provisions of its Subsidiaries during the Executive’s employment with the Companythis Section 5(a).
(b) The provisions of Section 5(a) shall not be deemed breached as a result of Executive’s passive ownership of less than an aggregate of 3% of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Executive agrees does not actively participate in the business of such Person; provided, however, that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 such stock is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Companylisted on a national securities exchange.
(c) Notwithstanding Without limiting the foregoinggenerality of Section 11, notwithstanding the fact that any provision of this Section 5 is determined not to be specifically enforceable, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions Company may nevertheless be entitled to recover monetary damages as a result of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions material breach of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliatessuch provision.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Executive acknowledges that Executive is being provided with significant additional consideration (to which Executive is not otherwise entitled), including stock options and restricted stock, to induce Executive to enter into this Agreement. Executive expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Executive further acknowledges that although Executive’s violation or threatened or attempted violation of compliance with the covenants contained in this Section 6 will cause irreparable harm Sections 5, 6, 7, 8 and 9 may prevent Executive from earning a livelihood in a business similar to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach business of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty Executive’s experience and disclosure, which Executive acknowledges and agrees capabilities are attendant to the executive and managerial positions such that the Executive has held other opportunities to earn a livelihood and will hold with the Companyadequate means of support for Executive and Executive’s dependents.
Appears in 4 contracts
Samples: Employment Agreement (Hemisphere Media Group, Inc.), Employment Agreement (Hemisphere Media Group, Inc.), Employment Agreement (Hemisphere Media Group, Inc.)
Noncompetition and Nonsolicitation. (a) In consideration Employee hereby acknowledges and recognizes the highly competitive nature of the benefits to which business of Univest and Bank and accordingly agrees that, during and for the Executive may be entitled under the terms of this Agreement, the confidential information relating to the Company and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s employment with the Company (including new confidential information provided to the Executive applicable period set forth in connection with, and as a result of, the MergerSection 4(c), and so as to protect such confidential information and the Company’s legitimate business interests Employee shall not: (including the goodwill with which the Executive will i) be associated, and that the Executive will help build during the Executive’s employmentengaged (other than by Univest or Bank), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not, directly or indirectly:
(i) carry on or engage in Competitive Duties (, as a directorconsultant, employee, consultantpartner, contractor officer, director, proprietor, investor (except as an investor owning less than 5% of the stock of a publicly owned company) or otherwise) within the Restricted Area for otherwise of any Competing Business;
person, firm, corporation or enterprise engaged in banking, insurance, mortgage banking, wealth management or trust services in any county in which a branch location, office, loan production office, or trust or asset and wealth management office of Univest, Bank, or any of their subsidiaries are located (“Non-Competition Area”); (ii) solicit (for or assist another in soliciting) on behalf of Employee or a same, similar or competitive business as Univest, Bank or any Covered Customer or Prospective Customer for the purpose of inducingtheir affiliates, solicit, provide services to, contract with, or attempting to induce, such Covered Customer accept business from any person or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) entity which (A) encourage (was or assist another in encouraging) any employeehas been a client of Univest, contractor, consultant, supplier, or vendor of the Company Bank or any of its Subsidiaries, their affiliates within one (1) year prior to terminate, cease or lessen its relationship the cessation of Employee’s employment and with the Company or any of its Subsidiarieswhom Employee had business dealings during that period, or (B) on behalf received a new business proposal from Univest, Bank or any of a Competing Businesstheir affiliates within one (1) year prior to the cessation of Employee’s employment; (iii) solicit, engageencourage or induce any person or entity with the effect or for the purpose of: (A) knowingly causing any material loans or deposits or other funds with respect to which Univest, employBank or any of their affiliates provides services to be withdrawn, (B) causing any client of Univest, Bank to refrain from engaging Univest, Bank or any of their affiliates, or solicit (C) causing any client to terminate or contact for materially diminish its relationship with Univest, Bank or any of their affiliates; and/or (iv) (A) affirmatively induce, offer, assist, solicit, encourage or suggest, in any manner whatsoever, (1) that Employee or another business or enterprise offer employment to or engagement enter into a business affiliation with any employee of Univest, Bank or any of their affiliates, or (or assist another in such activity2) that any employee, contractor agent or consultant representative of the Company Univest, Bank or any of its Subsidiaries their affiliates terminate his or any person who was an employeeher employment or business affiliation with Univest, contractor, or consultant of the Company Bank or any of its Subsidiaries at their affiliates; or (B) hire, employ or contract with any time during the last twelve (12) months employee of Univest, Bank or any of their affiliates. Notwithstanding any of the Executiveforegoing, Employee shall not be prohibited from making personal investments, loans or real estate transactions comparable to such transactions which would have been permitted during Employee’s employment with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractors, Univest or consultants of the Company or any of its Subsidiaries during the Executive’s employment with the Company)Bank.
(b) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 3 contracts
Samples: Change in Control Agreement (UNIVEST FINANCIAL Corp), Change in Control Agreement (UNIVEST FINANCIAL Corp), Change in Control Agreement (UNIVEST FINANCIAL Corp)
Noncompetition and Nonsolicitation. 3.1 The Employee agrees that during the Employee's employment with the Company or its Subsidiaries, and for the one (a1) In consideration of year period following the benefits date on which the Employee's employment with the Company or its Subsidiaries terminates for any reason, the Employee will not directly or indirectly, own, manage, operate, control (including indirectly through a debt or equity investment), provide services to, be employed by, or be connected in any manner with, any person or entity engaged in any business that is (i) located in a region with respect to which the Executive may Employee had substantial responsibilities while employed by the Company or its Subsidiaries, and (ii) competitive, with (A) the line of business or businesses of the Company or its Subsidiaries in which the Employee was employed with during the Employee's employment (including any prospective business to be entitled under developed or acquired that was proposed at the terms date of this Agreementtermination), or (B) any other business of the Company or its Subsidiaries with respect to which the Employee had substantial exposure during such employment. For avoidance of doubt, if the Employee is a senior officer of the Company, the confidential information relating restriction contained herein shall relate to the Company and all of its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information Subsidiaries.
3.2 The Employee agrees that during the course of the Executive’s Employee's employment with the Company (including new confidential information provided to the Executive in connection withor its Subsidiaries, and as a result offor the two (2) year period thereafter, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive Employee will not, directly or indirectly:
, on the Employee's own behalf or on behalf of another (i) carry on solicit, recruit, aid or engage induce any employee of the Company or its Subsidiaries to leave his or her employment with the Company or its Subsidiaries in Competitive Duties (as a director, employee, consultant, contractor order to accept employment with or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit (render services to another person or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business entity unaffiliated with the Company or its Subsidiaries, or not hire or knowingly take any action to do business with assist or aid any other person or entity in identifying or hiring any such employee, or (ii) solicit, aid, or induce any customer of the Company or its Subsidiaries; or
Subsidiaries to purchase goods or services then sold by the Company or its Subsidiaries from another person or entity, or assist or aid any other persons or entity in identifying or soliciting any such customer, or (iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship otherwise interfere with the Company or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant relationship of the Company or any of its Subsidiaries or any person who was an employee, contractor, or consultant of the Company or with any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractorscustomers, agents, representatives or consultants of the Company or any of its Subsidiaries during the Executive’s employment with the Company)suppliers.
(b) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 3 contracts
Samples: Employee Performance Share Agreement (Atkore International Group Inc.), Employee Restricted Stock Unit Agreement (Atkore International Group Inc.), Employee Stock Option Agreement (Atkore International Group Inc.)
Noncompetition and Nonsolicitation. (a) In consideration For purposes of the benefits to which the Executive may be entitled under the terms Sections 5, 6, 7, 8, 9, 10 and 11 of this Agreement, the confidential information relating references to the Company shall include its subsidiaries and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s employment with the Company Affiliates.
(including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the a) Executive agrees that Executive shall not, while employed or otherwise engaged by an employee of the Company or any of its affiliates, and thereafter for a during the one-year period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason(such collective duration, the Executive will not“Restriction Period”), directly or indirectly, without the prior written consent of the Company:
(i) carry on or (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the world that are principally or primarily in the business of producing Spanish language media content, or owning or operating Hispanic television networks (“Competitive Duties Activities”) or (as a directorB) assisting any Person in any way to do, employeeor attempt to do, consultant, contractor or otherwiseanything prohibited by this Section 5(a)(i)(A) within the Restricted Area for any Competing Business;above; or
(ii) solicit perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company, including (A) soliciting, recruiting or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, hiring (or attempting to inducesolicit, such Covered Customer recruit or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraginghire) any employee, contractor, consultant, supplier, or vendor employees of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with Persons who have worked for the Company during the 12-month period immediately preceding such solicitation, recruitment or any of its Subsidiaries, hiring or attempt thereof; (B) on behalf of a Competing Business, engage, employ, soliciting or encouraging (or attempting to solicit or contact for employment or engagement (or assist another in such activityencourage) any employee, contractor or consultant employee of the Company or any to leave the employment of its Subsidiaries or any person who was an employee, contractor, or consultant the Company; (C) intentionally interfering with the relationship of the Company with any Person who or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive which is employed by the Company for less than twelve (12) months, those persons who were employees, contractorsor otherwise engaged to perform services for, or consultants any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 5(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Executive is in violation of the Company or any provisions of its Subsidiaries during the Executive’s employment with the Companythis Section 5(a).
(b) The provisions of Section 5(a) shall not be deemed breached as a result of (i) Executive’s passive ownership of less than an aggregate of 3% of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Executive agrees does not actively participate in the business of such Person; provided, however, that such stock is listed on a national securities exchange or (ii) Executive’s rendering services following termination of employment with the CompanyCompany as a lawyer at a law firm to such law firm’s and its Subsidiaries’ substantial investments clients in the normal course of its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need (including without limitation any such clients engaged in Competitive Activities) (for the protection afforded sake of clarity, Executive shall remain bound by the other restrictive covenants in this agreement, including but not limited to Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Companyhereof).
(c) Notwithstanding Without limiting the foregoinggenerality of Section 11, notwithstanding the fact that any provision of this Section 5 is determined not to be specifically enforceable, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions Company may nevertheless be entitled to recover monetary damages as a result of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions material breach of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliatessuch provision.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Executive acknowledges that Executive is being provided with significant additional consideration (to which Executive is not otherwise entitled), including stock options and restricted stock, to induce Executive to enter into this Agreement. Executive expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Executive further acknowledges that although Executive’s violation or threatened or attempted violation of compliance with the covenants contained in this Section 6 will cause irreparable harm Sections 5, 6, 7, 8 and 9 may prevent Executive from earning a livelihood in a business similar to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach business of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty Executive’s experience and disclosure, which Executive acknowledges and agrees capabilities are attendant to the executive and managerial positions such that the Executive has held other opportunities to earn a livelihood and will hold with the Companyadequate means of support for Executive and Executive’s dependents.
Appears in 3 contracts
Samples: Employment Agreement (Hemisphere Media Group, Inc.), Employment Agreement (Hemisphere Media Group, Inc.), Employment Agreement (Hemisphere Media Group, Inc.)
Noncompetition and Nonsolicitation. (a) In consideration For purposes of the benefits to which the Executive may be entitled under the terms Sections 5, 6, 7, 8, 9, 10 and 11 of this Agreement, the confidential information relating references to the Company shall include its subsidiaries and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s employment with the Company Affiliates.
(including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the a) Executive agrees that Executive shall not, while employed or otherwise engaged by an employee of the Company or any of its affiliates, and thereafter for a during the one-year period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason(such collective duration, the Executive will not“Restriction Period”), directly or indirectly, without the prior written consent of the Company:
(i) carry on or (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the world that are principally or primarily in the business of producing Spanish language media content, or owning or operating Hispanic television networks (“Competitive Duties Activities”) or (as a directorB) assisting any Person in any way to do, employeeor attempt to do, consultant, contractor or otherwiseanything prohibited by this Section 5(a)(i)(A) within the Restricted Area for any Competing Business;above; or
(ii) solicit perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company, including (A) soliciting, recruiting or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, hiring (or attempting to inducesolicit, such Covered Customer recruit or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraginghire) any employee, contractor, consultant, supplier, or vendor employees of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with Persons who have worked for the Company during the 12-month period immediately preceding such solicitation, recruitment or any of its Subsidiaries, hiring or attempt thereof; (B) on behalf of a Competing Business, engage, employ, soliciting or encouraging (or attempting to solicit or contact for employment or engagement (or assist another in such activityencourage) any employee, contractor or consultant employee of the Company or any to leave the employment of its Subsidiaries or any person who was an employee, contractor, or consultant the Company; (C) intentionally interfering with the relationship of the Company with any Person who or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive which is employed by the Company for less than twelve (12) months, those persons who were employees, contractorsor otherwise engaged to perform services for, or consultants any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 5(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Executive is in violation of the Company or any provisions of its Subsidiaries during the Executive’s employment with the Companythis Section 5(a).
(b) The provisions of Section 5(a) shall not be deemed breached as a result of Executive’s passive ownership of less than an aggregate of 5% of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Executive agrees does not actively participate in the business of such Person; provided, however, that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 such stock is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Companylisted on a national securities exchange.
(c) Notwithstanding Without limiting the foregoinggenerality of Section 11, notwithstanding the fact that any provision of this Section 5 is determined not to be specifically enforceable, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions Company will nevertheless be entitled to seek monetary damages as a result of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions breach of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliatessuch provision.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Executive acknowledges that Executive is being provided with significant additional consideration (to which Executive is not otherwise entitled), including stock options and restricted stock, to induce Executive to enter into this Agreement. Executive expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Executive further acknowledges that although Executive’s violation or threatened or attempted violation of compliance with the covenants contained in this Section 6 will cause irreparable harm Sections 5, 6, 7, 8 and 9 may prevent Executive from earning a livelihood in a business similar to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach business of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty Executive’s experience and disclosure, which Executive acknowledges and agrees capabilities are attendant to the executive and managerial positions such that the Executive has held other opportunities to earn a livelihood and will hold with the Companyadequate means of support for Executive and Executive’s dependents.
Appears in 3 contracts
Samples: Employment Agreement (Hemisphere Media Group, Inc.), Employment Agreement (Hemisphere Media Group, Inc.), Employment Agreement (Hemisphere Media Group, Inc.)
Noncompetition and Nonsolicitation. (a) In consideration For purposes of the benefits to which the Executive may be entitled under the terms Sections 5, 6, 7, 8, 9, 10 and 11 of this Agreement, the confidential information relating references to the Company shall include its subsidiaries and its business previously provided to Affiliates.
(a) Employee agrees that Employee shall not, while an employee of the Executive, Company and the Company’s promise to provide the Executive with future confidential information during the course one-year period following termination of the Executive’s employment with the Company (including new confidential information provided to the Executive in connection with, and as a result ofsuch collective duration, the Merger“Restriction Period”), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not, directly or indirectly, without the prior written consent of the Company:
(i) carry on or (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the world that are principally or primarily in the business of producing Spanish language media content, or owning or operating Hispanic television networks (“Competitive Duties Activities”) or (as a directorB) assisting any Person in any way to do, employeeor attempt to do, consultant, contractor or otherwiseanything prohibited by this Section 5(a)(i)(A) within the Restricted Area for any Competing Business;above; or
(ii) solicit perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company, including (A) soliciting, recruiting or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, hiring (or attempting to inducesolicit, such Covered Customer recruit or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraginghire) any employee, contractor, consultant, supplier, or vendor employees of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with Persons who have worked for the Company during the 12-month period immediately preceding such solicitation, recruitment or any of its Subsidiaries, hiring or attempt thereof; (B) on behalf of a Competing Business, engage, employ, soliciting or encouraging (or attempting to solicit or contact for employment or engagement (or assist another in such activityencourage) any employee, contractor or consultant employee of the Company or any to leave the employment of its Subsidiaries or any person who was an employee, contractor, or consultant the Company; (C) intentionally interfering with the relationship of the Company with any Person who or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive which is employed by the Company for less than twelve (12) months, those persons who were employees, contractorsor otherwise engaged to perform services for, or consultants any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 5(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Employee is in violation of the Company or any provisions of its Subsidiaries during the Executive’s employment with the Companythis Section 5(a).
(b) The Executive agrees provisions of Section 5(a) shall not be deemed breached as a result of (i) Employee’s passive ownership of less than an aggregate of 3% of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Employee does not actively participate in the business of such Person; provided, however, that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 such stock is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Companylisted on a national securities exchange.
(c) Notwithstanding Without limiting the foregoinggenerality of Section 11, notwithstanding the fact that any provision of this Section 5 is determined not to be specifically enforceable, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions Company may nevertheless be entitled to recover monetary damages as a result of the Restricted Area located within the State Employee’s material breach of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliatessuch provision.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive Employee acknowledges that the ExecutiveCompany has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Employee acknowledges that Employee is being provided with significant additional consideration (to which Employee is not otherwise entitled), including stock options and restricted stock, to induce Employee to enter into this Agreement. Employee expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Employee further acknowledges that although Employee’s violation or threatened or attempted violation of compliance with the covenants contained in this Section 6 will cause irreparable harm Sections 5, 6, 7, 8 and 9 may prevent Employee from earning a livelihood in a business similar to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach business of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties Employee’s experience and capabilities are such that Employee has other opportunities to earn a livelihood and adequate means of loyalty support for Employee and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the CompanyEmployee’s dependents.
Appears in 2 contracts
Samples: Employment Agreement (Hemisphere Media Group, Inc.), Employment Agreement (Hemisphere Media Group, Inc.)
Noncompetition and Nonsolicitation. (a) Executive hereby acknowledges that, during and solely as a result of his employment by the Company, he has received and shall continue to receive access to confidential information and business and professional contacts. In consideration of the benefits special and unique opportunities afforded to which the Executive may be entitled under the terms of this Agreement, the confidential information relating to by the Company and its business previously provided to as a result of Executive's employment, as outlined in the Executiveprevious sentence, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s hereby agrees as follows:
(a) During his employment with the Company (including new confidential information provided to the Executive in connection withand, and except as a result ofmay be otherwise herein provided, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve six (126) months immediately following the termination of his employment with the Executive’s employment Company, regardless of the reason for whatever reasonsuch termination, the Executive agrees he will refrain from and will not, directly or indirectly:
, (i1) carry on induce, solicit or engage in Competitive Duties (as a directorattempt to induce or solicit any employee, employeeadvisor, independent contractor, consultant, contractor agent, representative salesman of the Company or otherwise) within its subsidiaries to leave employ of the Restricted Area for any Competing Business;
(ii) solicit (Company or assist another in soliciting) any Covered Customer its subsidiaries or Prospective Customer for the purpose of inducing, otherwise severe or attempting to induce, terminate such Covered Customer or Prospective Customer to cease or reduce its person's business relationship with the Company or its Subsidiariessubsidiaries (including, but not limited to, making any negative statements or not to do business with communications about the Company or its Subsidiaries; or
subsidiaries), (iii2) (A) encourage (interfere with the business relationship between the Company or assist another in encouraging) its subsidiaries and any employee, advisor, independent contractor, consultant, supplieragent, representative or vendor salesman of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with the Company or any of its Subsidiaries, subsidiaries or (B3) on behalf hire, contract with or otherwise engage the services of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor advisor, independent contractor, consultant, agent, representative or consultant salesman of the Company or its subsidiaries for the benefit of any other person, or (5) accept employment with or seek remuneration by any of its Subsidiaries the clients or any person who was an employee, contractor, or consultant customers of the Company or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment subsidiaries with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractors, or consultants of whom the Company or any of its Subsidiaries subsidiaries did business during the term of Executive’s employment with the Company)'s employment.
(b) The period of time during which Executive agrees that the Company’s and its Subsidiaries’ substantial investments is prohibited from engaging in its certain business interests, goodwill and confidential information are worthy practices pursuant to Section 11 (b) of protection and that the Company’s and its Subsidiaries’ need for the protection afforded this Article II shall be extended by this Section 6 any length of time during which Executive is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope in breach of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Companysuch covenants.
(c) Notwithstanding It is understood by and between the foregoing, parties hereto that the above-referenced limitations foregoing restrictive covenants set forth in Sections 6(a)(iSections11(a) and (iib) of this Article II are essential elements of this Agreement, and that, but for the agreement of Executive to comply with such covenants, the Company would not have agreed to enter into this Agreement. Such covenants by Executive shall be construed as agreements independent of any other provision in this Agreement. The existence of any claim or cause of action of Executive against the Company, whether predicated on this Agreement, or otherwise, shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition constitute a defense to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement enforcement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliatessuch covenants.
(d) Although It is agreed by the Company and Employee that if any portion of the Executive believe the limitations as to time, geographic area, and scope of activity contained covenants set forth in this Section 6 11 are reasonable held to be invalid, unreasonable, arbitrary or against public policy, then such portion of such covenants shall be considered divisible both as to time and do not impose a greater restraint than necessary to protect the Company’s geographical area. The Company and its Subsidiaries’ confidential information and legitimate business interestsEmployee agree that, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdictionjurisdiction determines the specified time period or the specified geographical area applicable to this Section 11 to be invalid, restraining any violation unreasonable, arbitrary or further violation of such agreements by the against public policy, a lesser time period or geographical area which is determined to be reasonable, non-arbitrary and not against public policy may be enforced against Executive. The Company and Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing agree that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The foregoing covenants made are appropriate and reasonable when considered in light of the nature and extent of the business conducted by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 2 contracts
Samples: Employment Agreement (Penncorp Financial Group Inc /De/), Employment Agreement (Penncorp Financial Group Inc /De/)
Noncompetition and Nonsolicitation. For purposes of this Exhibit, references to the Company shall include its subsidiaries and Affiliates and references to the Agreement shall refer to the Restricted Stock Unit Agreement to which this Exhibit is attached, provided that section references herein shall refer to sections in this Exhibit.
(a) In consideration Participant agrees that Participant shall not, while an employee of the benefits to which the Executive may be entitled under the terms of this Agreement, the confidential information relating to the Company and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s employment with the Company (including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately month period following the termination of the Executive’s employment for whatever reason(such collective duration, the Executive will not“Restriction Period”), directly or indirectly, without the prior written consent of the Company:
(i) carry on or engage in Competitive Duties (as a director, employee, consultant, contractor or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage engage in activities or businesses (or assist another in encouraging) including without limitation by owning any employeeinterest in, contractormanaging, consultantcontrolling, supplierparticipating in, consulting with, advising, rendering services for, or vendor in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses of the Company or any of its Subsidiaries, to terminate, cease subsidiaries or lessen its relationship with controlled affiliates or any entity owned by the Company or any of its Subsidiaries, (“Competitive Activities”) or (B) on behalf of a Competing Business, engage, employassisting any Person in any way to do, or solicit attempt to do, anything prohibited by this Section 1(a)(i)(A) above; or
(ii) perform any action, activity or contact for employment course of conduct which is substantially detrimental to the businesses or engagement business reputations of the Company and involves (A) soliciting, recruiting or hiring (or assist another in such activityattempting to solicit, recruit or hire) any employee, contractor or consultant employees of the Company or any of its Subsidiaries or any person Persons who was an employee, contractor, or consultant of have worked for the Company or any of its Subsidiaries at any time during the last twelve (12) months month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Executive’s Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company (or, if the Executive with any Person who or which is employed by the Company for less than twelve (12) months, those persons who were employees, contractorsor otherwise engaged to perform services for, or consultants any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 1(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Participant is in violation of the Company or any provisions of its Subsidiaries during the Executive’s employment with the Company)this Section 1(a) unless provided below.
(b) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy provisions of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii1(a) shall not apply in those portions be deemed breached as a result of the Restricted Area located within the State Participant’s passive ownership of Oklahoma. Insteadless than an aggregate of three percent (3%) of any class of securities of a Person engaged, the Executive agrees thatdirectly or indirectly, in addition to Competitive Activities, so long as Participant does not actively participate in the limitations in Section 6(a)(iii)business of such Person; provided, however, that such stock is listed on a national securities exchange (for the restrictions on the Executive’s activities within those portions sake of the Restricted Area located within the State of Oklahoma clarity, Participant shall be as follows: during the Executive’s employment or other engagement remain bound by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the other restrictive covenants in this Agreement, including entry but not limited to Section 2 hereof).
(c) Without limiting the generality of an ex parte temporary restraining order in state or federal courtSection 7, preliminary and permanent injunctive relief against activities in violation notwithstanding the fact that any provision of this Section 61 is determined not to be specifically enforceable, or both, or other appropriate judicial remedy, writ or order, in any court the Company may nevertheless be entitled to recover monetary damages as a result of competent jurisdiction, restraining any violation or further violation Participant’s material breach of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing provision.
(d) Participant acknowledges that the Company or has a legitimate business interest and right in protecting its Subsidiaries do not have an adequate remedy at law.
Confidential Information (f) The covenants made as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the Executive in disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Participant acknowledges that Participant is being provided with significant additional consideration (to which Participant is not otherwise entitled), including restricted stock units, to induce Participant to enter into this Agreement. Participant expressly acknowledges and agrees that each and every restraint imposed by this Agreement are is reasonable with respect to subject matter, time period and geographical area. Participant further acknowledges that although Participant’s compliance with the covenants contained in addition Sections 1, 2, 3, 4 and 5 may prevent Participant from earning a livelihood in a business similar to all other duties owed by the Executive to business of the Company, including, without limitation, fiduciary duties Participant’s experience and capabilities are such that Participant has other opportunities to earn a livelihood and adequate means of loyalty support for Participant and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the CompanyParticipant’s dependents.
Appears in 2 contracts
Samples: Nonqualified Stock Option Award Agreement (Infrastructure & Energy Alternatives, Inc.), Restricted Stock Unit Award Agreement (Infrastructure & Energy Alternatives, Inc.)
Noncompetition and Nonsolicitation. (a) In consideration Without the prior written consent of the benefits Board, during the period that the Executive is employed by Employer and, in the event the Executive terminates his employment with the Employer for any reason other than as a result of a material breach by the Employer of any of the Employer’s obligations under this Agreement, or any other agreement to which the Executive may be entitled under the terms of this Agreement, the confidential information relating to the Company and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s employment with the Company Employer are now or hereafter parties, for one (including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve (121) months immediately following the termination of the Executive’s employment for whatever reasonyear thereafter, the Executive will not, directly or indirectly:
(i) carry on or engage in Competitive Duties (, whether as a directorowner, partner, shareholder, consultant, agent, employee, consultant, contractor co-venturer or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with the Company or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employparticipate, assist or solicit or contact for employment or engagement invest in any Competing Business (or assist another in such activity) any employee, contractor or consultant as hereinafter defined). Without the prior written consent of the Company or any of its Subsidiaries or any person who was an employeeBoard, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if period that the Executive is employed by the Company for less than twelve Employer and, (12x) months, those persons who were employees, contractors, or consultants in the event of the Company or any of its Subsidiaries during the Executive’s employment with the Company).
(b) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment by the Employer with Cause or (y) in the event the Executive terminates his employment with the Employer for whatever reasonany reason other than as a result of a material breach by the Employer of any of the Employer’s obligations under this Agreement, or any other agreement to which the Executive and the Employer are now or hereafter parties, for one (1) year thereafter, the Executive will not refrain from directly solicit or indirectly employing, attempting to employ, recruiting or otherwise soliciting, inducing or influencing any person to leave employment with the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic areaEmployer, and scope of activity contained also will refrain from soliciting or encouraging any customer or supplier to terminate or otherwise modify adversely its business relationship with the Employer. The Executive understands that the restrictions set forth in this Section 6 7(d) are intended to protect the Parent’s and Employer’s interest in their Confidential Information and established employee, customer and supplier relationships and goodwill, and agrees that such restrictions are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if appropriate for this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation purpose. For purposes of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry the term “Competing Business” shall mean any business that provides or intends to provide the same or similar services as those provided by the Parent and/or the Employer or any of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, its subsidiaries in any court geographic area then served by Parent (which for this purpose only shall be defined as being within 100 miles of competent jurisdiction, restraining any violation office or further violation of such agreements data center currently used or operated by the Executive Parent or others active on any subsidiary of Parent or the Executive’s behalf, without Employer) and/or the Employer or any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at lawtheir subsidiaries.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 2 contracts
Samples: Employment Agreement (Crown Electrokinetics Corp.), Employment Agreement (Crown Electrokinetics Corp.)
Noncompetition and Nonsolicitation. (a) In consideration The Executive agrees that the Executive shall not, without the prior written consent of the benefits to which Board, during the period the Executive may be entitled under the terms is an employee of this Agreement, the confidential information relating to the Company and its business previously provided to the ExecutiveSubsidiaries, and the Company’s promise to provide the Executive with future confidential information during the course for a period of the Executive’s one year following termination of employment with the Company and its Subsidiaries (including new confidential information provided to the Executive in connection with, and as a result ofsuch periods, the Merger“Restriction Period”), and so as to protect such confidential information and the Company’s legitimate business interests directly or indirectly (including the goodwill with which the Executive will be associated, and that the Executive will help build during other than in the Executive’s employment), the Executive agrees that while employed or otherwise engaged by capacity as an employee of the Company or any of and its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not, directly or indirectly:Subsidiaries):
(i) carry on or engage in Competitive Duties (as a director, employee, consultant, contractor any activity or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducingbusiness, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its establish any new business that is in competition with the Company or its SubsidiariesSubsidiaries or Affiliates (such activity or business, or not to do business with the Company or its Subsidiaries; or
(iii) a “Competitive Activity”), including (A) encourage (operating, attempting to operate or assist another participating in encouraging) any employee, contractor, consultant, supplier, or vendor the operation of a business relating to the Company or any production and marketing of its Subsidiaries, to terminate, cease or lessen its relationship with the Company or any of its Subsidiaries, or nitrogen products; (B) on behalf of a Competing Business, engage, employ, soliciting or attempting to solicit any customer or contact for employment client or engagement (prospective customer or assist another in such activity) any employee, contractor or consultant client of the Company or any of its Subsidiaries or Affiliates (including, without limitation, actively sought prospective customers or clients), to purchase any goods or services of the type sold by the Company or any of its Subsidiaries or Affiliates from anyone other than the Company or its Subsidiaries or Affiliates; and (C) assisting any Person in any way to do, or attempt to do, anything prohibited by (A) or (B) above; or
(ii) (A) solicit, recruit or hire, any person who was an employee, contractoris at such time, or who at any time during the six-month period prior to such solicitation or hiring had been, an employee of, or exclusive consultant then under contract with, the Company or its Subsidiaries or Affiliates, without the Company’s prior written consent; (B) solicit or encourage any employee of the Company or its Subsidiaries or Affiliates to leave the employment of the Company or its Subsidiaries or Affiliates; or (C) intentionally interfere with the relationship of the Company or any of its Subsidiaries at or Affiliates with any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive Person or entity who or which is employed by the Company or otherwise engaged to perform services for less than twelve (12) months, those persons who were employees, contractors, or consultants of the Company or any such Subsidiary or Affiliate. The Restriction Period shall be deemed automatically extended for a period equal to any period during which the Executive is in violation of its Subsidiaries during the Executive’s employment with the Companyprovisions of this Section 6(a).
(b) The Executive agrees that Notwithstanding anything to the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contrary contained in this Agreement are reasonable and are Agreement, the Executive’s passive ownership of less than an aggregate of 2% of any class of stock of a Person engaged, directly or indirectly, in Competitive Activities will not greater than necessary be deemed to protect result in a breach of Section 6(a), provided that such stock is listed on a national securities exchange or is quoted on the confidential information, good-will and other legitimate business interests National Market System of the CompanyNASDAQ.
(c) Notwithstanding If a final and non-appealable judicial determination is made that any of the foregoingprovisions of this Section 6 constitutes an unreasonable or otherwise unenforceable restriction against the Executive, the above-referenced limitations provisions of this Section 6 will not be rendered void but will be deemed to be modified to the minimum extent necessary to remain in Sections 6(a)(i) force and (ii) shall effect for the greatest period and to the greatest extent that such court determines constitutes a reasonable restriction under the circumstances. Moreover, notwithstanding the fact that any provision of this Section 6 is determined not apply in those portions of the Restricted Area located within the State of Oklahoma. Insteadto be specifically enforceable, the Executive agrees that, in addition Company will nevertheless be entitled to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be recover monetary damages as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination result of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at lawprovision.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 2 contracts
Samples: Employment Severance Agreement (Terra Industries Inc), Employment Severance Agreement (Terra Industries Inc)
Noncompetition and Nonsolicitation. (a) In consideration Employee hereby acknowledges and recognizes the highly competitive nature of the benefits business of Univest and Bank and accordingly agrees that, during and for the applicable period set forth in Section 4(c), Employee shall not:
(i) be engaged (other than by Univest or Bank), directly or indirectly, as a consultant, employee, partner, officer, director, proprietor, investor (except as an investor owning less than 5% of the stock of a publicly owned company) or otherwise of any person, firm, corporation or enterprise engaged in banking, insurance, mortgage banking, wealth management or trust services in any county in which a branch location, office, loan production office, or trust or asset and wealth management office of Univest, Bank, or any of their subsidiaries are located (“Non-Competition Area”);
(ii) for or on behalf of Employee or a same, similar or competitive business as Univest, Bank or any of their affiliates, solicit, provide services to, contract with, or accept business from any person or entity which (A) was or has been a client of Univest, Bank or any of their affiliates within one (1) year prior to the cessation of Employee’s employment and with whom Employee had business dealings during that period, or (B) received a new business proposal from Univest, Bank or any of their affiliates within one (1) year prior to the cessation of Employee’s employment;
(iii) solicit, encourage or induce any person or entity with the effect or for the purpose of: (A) knowingly causing any material loans or deposits or other funds with respect to which the Executive may Univest, Bank or any of their affiliates provides services to be entitled under the terms withdrawn, (B) causing any client of this AgreementUnivest, the confidential information relating Bank to the Company and refrain from engaging Univest, Bank or any of their affiliates, or (C) causing any client to terminate or materially diminish its relationship with Univest, Bank or any of their affiliates; and/or
(iv) (A) affirmatively induce, offer, assist, solicit, encourage or suggest, in any manner whatsoever, (1) that Employee or another business previously provided or enterprise offer employment to the Executiveor enter into a business affiliation with any employee of Univest, and the Company’s promise to provide the Executive Bank or any of their affiliates, or (2) that any employee, agent or representative of Univest, Bank or any of their affiliates terminate his or her employment or business affiliation with future confidential information during the course Univest, Bank or any of their affiliates; or (B) hire, employ or contract with any employee of Univest, Bank or any of their affiliates. Notwithstanding any of the Executiveforegoing, Employee shall not be prohibited from making personal investments, loans or real estate transactions comparable to such transactions which would have been permitted during Employee’s employment with Univest or Bank.
(b) It is expressly understood and agreed that, although Employee, Univest and Bank consider the Company (including new confidential information provided to restrictions contained in Section 4(a) reasonable for the Executive purpose of preserving for Univest and Bank their goodwill and other proprietary rights, if a final judicial determination is made by a court or arbitrator having jurisdiction that the time or territory or any other restriction contained in connection with, and as a result ofSection 4(a) is an unreasonable or otherwise unenforceable restriction against Employee, the Merger), and so provisions of Section 4(a) shall not be rendered void but shall be deemed amended to apply as to protect such confidential information maximum time and territory and to such other extent as such court may judicially determine or indicate to be reasonable.
(c) The provisions of this Section 4 shall be applicable commencing on the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, date of this Agreement and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of ending twelve (12) months immediately following the effective date of termination of employment, provided Employee receives the Executive’s payments and benefits described in Section 3. In addition, in the event the Employee voluntarily terminates employment for whatever reason, the Executive will not, directly or indirectly:
(i) carry on or engage in Competitive Duties (as a director, employee, consultant, contractor or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with the Company or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant of the Company or any of its Subsidiaries or any person who was an employee, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last twelve Term (12) months of the Executive’s employment with the Company (or, if the Executive is employed by the Company other than a voluntary termination for less than twelve (12) months, those persons who were employees, contractors, or consultants of the Company or any of its Subsidiaries during the Executive’s employment with the Company).
(b) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments Good Reason following a Change in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iiiControl), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation provisions of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active 4 shall be applicable commencing on the Executive’s behalf, without any showing date of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by and ending six (6) months following the Executive to the Company, including, without limitation, fiduciary duties effective date of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Companytermination of employment.
Appears in 2 contracts
Samples: Change in Control Agreement (UNIVEST FINANCIAL Corp), Change in Control Agreement (Univest Corp of Pennsylvania)
Noncompetition and Nonsolicitation. (a) In consideration of the benefits to which the Executive may be entitled under the terms of this Agreement, the confidential information relating to the Company and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s During his employment with the Company (including new confidential information provided to the Company, Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will shall not, directly or indirectly:
(i) carry on , render services of a business, professional or commercial nature to any other person or entity that competes with the Company's business, whether for compensation or otherwise, or engage in Competitive Duties (any business activities competitive with the Company's business, whether alone, as an employee, as a directorpartner, employeeor as a shareholder (other than as the holder of not more than one percent of the combined voting power of the outstanding stock of a public company), consultantExecutive or director of any corporation or other business entity, contractor or otherwise) within as a trustee, fiduciary or in any other similar representative capacity of any other entity. Notwithstanding the Restricted Area for any Competing Businessforegoing, the expenditure of reasonable amounts of time as a member of other companies' Board of Directors shall not be deemed a breach of this if those activities do not materially interfere with the services required under this Agreement;
(iib) solicit For a period of one (or assist another in soliciting1) any Covered Customer or Prospective Customer for year after the purpose termination of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with the Company or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant of the Company or any of its Subsidiaries or any person who was an employee, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s 's employment with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractorsany reason, or consultants for a period of two (2) years following Executive's voluntary resignation without Good Reason, Executive will not directly or indirectly, absent the Company Company's prior written approval, render services of a business, professional or commercial nature to any of its Subsidiaries during the Executive’s employment other person or entity that competes with the Company).
's business (b"Company" as used herein shall be deemed to include the Company and any parent, subsidiary or affiliate corporations) The Executive agrees that in the geographical area in which the Company does business, whether for compensation or otherwise, or engage in any business activities competitive with the Company’s and its Subsidiaries’ substantial investments in its business interests's business, goodwill and confidential information are worthy whether alone, as an employee, as a partner, or as a shareholder (other than as the holder of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater not more than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests one percent of the Companycombined voting power of the outstanding stock of a public company), Executive or director of any corporation or other business entity, or as a trustee, fiduciary or in any other similar representative capacity.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for For a period of twelve one (121) months immediately following the year after termination of the Executive’s 's employment for whatever any reason, the Executive will not directly recruit solicit the sale of goods, servicesor induce, or a combination of goods and services from the established customers attempt to induce, any employee or employees of the CompanyCompany to terminate their employment with, or otherwise cease their relationship with, the Company’s subsidiaries or the Company’s affiliates.; or
(d) Although For a period of one (1) year after termination of Executive's employment for any reason, Executive will not solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company and the which were contacted, solicited or served by Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements while employed by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 2 contracts
Samples: Employment Agreement (Acies Corp), Employment Agreement (Acies Corp)
Noncompetition and Nonsolicitation. (ai) In consideration Subject to the provisions of Section 4(c)(iii) hereof, during his period of employment and thereafter for a period of two years following termination of his employment (and up to five years in the case of the benefits to which restriction contained in Section 4(c)(ii)) (the Executive may be entitled under the terms of this Agreement, the confidential information relating to the Company and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s employment with the Company (including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment“Restricted Period”), the Executive agrees that while he will not, directly or indirectly, on his own behalf or as a partner, owner, officer, director, stockholder, member, employee, agent or consultant of any other Person, within any state (including the District of Columbia), territory, possession or country where the Company conducts business during the Employment Period or during the Restricted Period:
(A) own, manage, operate, control, be employed by, provide services as a consultant to, or otherwise participate in the ownership, management, operation, or control of, any Person engaged by in any activity competitive with the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not, directly or indirectly:
(i) carry on or engage in Competitive Duties (as a director, employee, consultant, contractor or otherwise) within the Restricted Area for any Competing BusinessAffiliates;
(iiB) engage in the business of providing goods or services that are the same as or similar to the goods or services of the Company or any of its Affiliates;
(C) contact any of the Company’s Customers or potential Customers or solicit or induce (or assist another in solicitingattempt to solicit or induce) any Covered of the Company’s Customers to discontinue or reduce its business with the Company, or any potential Customers not to conduct business with the Company, or any Customer or Prospective potential Customer for to conduct business with or contract with any other Person that competes with the purpose of inducingCompany or its Affiliates; or
(D) persuade or attempt to persuade any supplier, agent, broker, or attempting contractor of the Company or any of its Affiliates to induce, such Covered Customer or Prospective Customer to cease discontinue or reduce its business with the Company (or its Subsidiariesany prospective supplier, broker, agent, or not contractor to do refrain from doing business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with the Company or any of its SubsidiariesAffiliates).
(ii) Subject to the provisions of Section 4(c)(iii) hereof, during a Restricted Period of up to five years, the Executive agrees that he will not, directly or indirectly, on his own behalf or as a partner, owner, officer, director, stockholder, member, employee, agent or consultant of any other Person, within any state (including the District of Columbia), territory, possession or country where the Company conducts business during the Employment Period or during the Restricted Period solicit, hire, or (B) on behalf of a Competing Businessotherwise attempt to establish for any Person, engageany employment, employagency, consulting or solicit or contact for employment or engagement (or assist another in such activity) other business relationship with any employee, contractor Person who is an employee or consultant of the Company or any of its Subsidiaries or any person who was an employeeAffiliates, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractors, or consultants of the Company or any of its Subsidiaries during the Executive’s employment with the Company).
(b) The Executive agrees provided that the Company’s and its Subsidiaries’ substantial investments prohibition in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii4(c)(ii)(C) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, bar the Executive agrees that, in addition to from soliciting or hiring any former employee or former consultant who at the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions time of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment such solicitation or other engagement hire had not been employed or engaged by the Company or any of its affiliates, and thereafter Affiliates for a period of twelve at least six (126) months immediately following months, or any other provider of services to the termination Company or any of its Affiliates, as long as such Person’s engagement by the Executive does not interfere or conflict with the provision of services to the Company or an Affiliate by such Person.
(iii) The parties hereto acknowledge and agree that, notwithstanding anything in Section 4(c)(i) or (ii) hereof the Executive may own or hold, solely as passive investments, securities of Persons engaged in any business that would otherwise be included in Section 4(c)(i) or (ii), as long as with respect to each such investment, the securities held by the Executive do not exceed five percent (5%) of the Executive’s employment for whatever reasonoutstanding securities of such Person and such securities are publicly traded and registered under Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”); provided, that in the case of investments otherwise permitted under this clause, the Executive will shall not be permitted to, directly solicit the sale of goodsor indirectly, servicesparticipate in, or a combination of goods and services from the established customers of the Companyattempt to influence, the Company’s subsidiaries management, direction or policies of (other than through the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope exercise of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made voting rights held by the Executive in this Agreement are in addition to all other duties owed by connection with such securities), or lend the Executive to the CompanyExecutive’s name to, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Companyany such Person.
Appears in 1 contract
Noncompetition and Nonsolicitation. (a) In consideration of the benefits to which set forth herein in paragraphs 2 and 4, the Executive may be entitled under agrees that for a period of one year following the terms earlier of this Agreement, (a) the confidential information relating to the Company and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course termination of the Executive’s employment with the Company Bank for any reason including resignation for other than “good reason” (including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests those terms are defined herein) (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve (12b) months immediately following the termination of the Executive’s employment for whatever reasonwith the Bank within one (1) year following a Change in Control, the Executive will notnot enter the employ of, or have any interest in, directly or indirectly:
indirectly (i) carry on or engage in Competitive Duties (either as a executive, director, employeeofficer, consultant, contractor agent or otherwiseemployee) of any other bank or financial institution or any entity which either accepts deposits or makes loans (whether presently existing or subsequently established) and which has an office located within Orange, Lake and Seminole Counties in Florida. In addition, during such one-year period, the Restricted Area for any Competing Business;
Executive agrees that the Executive will not (iia) solicit (for employment by the Executive or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducinganyone else, or attempting to induceemploy, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor employee of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with the Company or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant of the Company or any of its Subsidiaries Bank or any person who was an employee, contractoremployee of the Bank within 12 months prior to such solicitation of employment; (b) induce, or consultant attempt to induce, any employee in the Bank to terminate such employee’s employment with the Bank; (c) induce, or attempt to induce, anyone having a business relationship with the Bank to terminate or curtail such relationship or, on behalf of himself or anyone else, to compete with the Bank; or (d) permit anyone controlled by the Executive, or any person acting on behalf of the Company Executive or any controlled by an employee of its Subsidiaries at the Executive, to do any time during of the last twelve (12) months foregoing. The Executive’s employment shall be deemed to have been terminated for “cause” if as a result of the Executive’s employment (i) failure to comply with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractors, or consultants polices of the Company or any of its Subsidiaries during the Executive’s employment with the Company).
(b) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments bank established from time to time in its business interestsa material fashion, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply engaging in those portions conduct involving fraud, deceit, personal dishonesty (except for unintentional errors), breach of fiduciary or any other reckless or willful misconduct which could have a material adverse affect on the business or reputation of the Restricted Area located within Bank; (iii) knowingly violating any banking law or regulation that could have the State impact of Oklahoma. Insteaddirectly affecting in a materially adverse way the Camels rating of the bank; (iv) becoming subject to continuing intemperance in the use of alcohol or drugs which has adversely affected, or is likely to adversely affect, the Executive agrees thatbusiness or reputation of the Bank, in addition or being convicted of a crime involving moral turpitude; (v) filing, or having filed against the Executive, any petition under the Federal bankruptcy laws of any state insolvency laws, or (vi) the Employee’s gross negligence or the willful and continued failure to perform his/her material duties with respect to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment Employer or other engagement by the Company or any of its affiliates, and thereafter which continues beyond ten (10) business days after a written demand for substantial performance specifying such failure(s) is received by Employee from the Employer. The executives resignation shall be considered for “good reason” if it is a period result of: (i) a material reduction in executives base salary,(ii) a material reduction in the scope of twelve executive’s responsibility or duties, or (12iii) months immediately following a material breach by the termination bank of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation terms of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at lawagreement.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Noncompetition and Nonsolicitation. (a) In consideration During Executive’s employment and for a period of six (6) months after the benefits to which the Executive may be entitled under the terms termination of this Agreement, the confidential information relating to the Company and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s employment with the Company (including new confidential information provided to the Company, Executive in connection withwill not directly or indirectly, and as a result of, the Merger), and so as to protect such confidential information and absent the Company’s legitimate prior written approval, render services of a business, professional or commercial nature to any other person or entity that competes with the Company in the same geographical area where the Company does business interests at the time this covenant is in effect (including or where the goodwill Company has made, as of the effective date of termination, active plans to do business), whether such services are for compensation or otherwise, whether alone or in conjunction with which others, as an employee, as a partner, or as a shareholder (other than as the Executive will be associatedholder of not more than 1% of the combined voting power of the outstanding stock of a public company), and that the Executive will help build during the officer or director of any corporation or other business entity, or as a trustee, fiduciary or in any other similar representative capacity.
(b) During Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, employment and thereafter for a period of twelve six (126) months immediately following after the termination of the Executive’s employment for whatever reasonwith the Company, the Executive will not, directly or indirectly:
(i) carry on , recruit, solicit or engage in Competitive Duties (as a director, employee, consultant, contractor or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducinginduce, or attempting attempt to inducerecruit, such Covered Customer solicit or Prospective Customer to cease induce any employee or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor employees of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with the Company or any of its Subsidiariesterminate their employment with, or (B) on behalf of a Competing Businessotherwise cease their relationship with, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant of the Company or any of its Subsidiaries or any person who was an employee, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractors, or consultants of the Company or any of its Subsidiaries during the Executive’s employment with the Company).
(b) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the During Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve six (126) months immediately following after the termination of the Executive’s employment for whatever reasonwith the Company, Executive will not, directly or indirectly, solicit, divert or take away, or attempt to solicit, divert or take away, the Executive will not directly solicit business or patronage of any of the sale Serviced Clients of goods, services, the Company or a combination of goods and services from the established customers Marketed Prospective Clients of the Company, the Company’s subsidiaries or the Company’s affiliatesas defined in Section 6.2(d).
(d) Although As used above, a “Serviced Client” shall be considered any client, customers or accounts of the Company and the with whom Executive believe the limitations as to time, geographic area, and scope had business dealings or contacts on behalf of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and in the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executivecourse of Employee’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that employment with the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, about which Executive acknowledges and agrees are attendant had access to Proprietary Information. As used above, the executive and managerial positions that “Marketed Prospective Clients” shall be considered any prospective clients, customers or accounts of the Company with whom Executive has held and will hold had business dealings or contacts on behalf of the Company in the course of Executive’s employment with the CompanyCompany or about which Executive had access to Proprietary Information.
Appears in 1 contract
Samples: Employment Agreement (Document Security Systems Inc)
Noncompetition and Nonsolicitation. (a) In consideration Executive acknowledges that in the course of his employment with the benefits to which Company, he has become familiar with the Executive may be entitled under Company's and its Affiliates' trade secrets and with other Confidential Information concerning the terms Company and that his services were of this Agreementspecial, the confidential information relating unique and extraordinary value to the Company and its business previously provided to Affiliates. Therefore, Executive agrees that, until October 31, 2001 (the Executive"Noncompete Period"), and he shall not, without the Company’s promise to provide 's prior written consent, directly or indirectly own, manage, control, participate in, consult with, render services for, or in any manner engage in any business competing with the Executive with future confidential information during the course Business of the Executive’s employment with the Company (including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill or its Subsidiaries or Affiliates or any businesses with which the Executive will be associated, and has knowledge that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or its Subsidiaries has plans to engage in, except that:
(i) Executive may own stock in any of its affiliatescompany that competes with the Business provided that (a) the company is publicly traded on a national stock exchange, and thereafter (b) Executive does not own more than 1% of the outstanding shares of the company; and
(ii) Executive may provide consulting services to or render services for the charge and credit card, travelers check and small business services groups of the American Express Travel Related Services Company, Inc., provided that none of the aforementioned business units compete with the Business.
(b) During the Noncompete Period and for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reasonthereafter, the Executive will not, shall not directly or indirectly:
indirectly through another entity (i) carry on induce or engage attempt to induce any employee of the Company or any Subsidiary to leave the employ of the Company or such Subsidiary, or in Competitive Duties (as a director, employee, consultant, contractor any way interfere with the relationship between the Company or otherwise) within the Restricted Area for any Competing Business;
Subsidiary and any employee thereof or (ii) solicit (induce or assist another in soliciting) attempt to induce any Covered Customer customer, supplier, vendor, licensee or Prospective Customer for other business relation of the purpose of inducing, Company or attempting to induce, such Covered Customer or Prospective Customer any Subsidiary to cease or reduce its doing business with the Company or its Subsidiariessuch Subsidiary, or not to do modify its business relationship with the Company in a manner adverse to the Company or any Subsidiary or in any way disparage the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) Subsidiaries to any employee, contractor, consultantsuch customer, supplier, vendor, licensee or vendor business relation of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with the Company or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant of the Company or any of its Subsidiaries or any person who was an employee, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractors, or consultants of the Company or any of its Subsidiaries during the Executive’s employment with the Company).
(b) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the CompanySubsidiary.
(c) Notwithstanding If, at the foregoingtime of enforcement of Section 1.9 or 1.10 of this Agreement, a court holds that the restrictions stated herein are unreasonable under circumstances then existing, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically parties hereto agree that the limitations contained in this Agreement maximum duration, scope or geographical area reasonable under such circumstances shall be reformed to substituted for the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges 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 Executive’s violation or threatened or attempted violation of 's services are unique and because Executive has access to Confidential Information, the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and parties hereto agree that monetary money damages would not be sufficient an inadequate remedy for any breach of these sectionsthis Agreement. The Executive agrees that Therefore, in the Company and its Subsidiaries shall be entitled as event a matter breach or threatened breach of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state the Company or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, its successors or both, or other appropriate judicial remedy, writ or orderassigns may, in addition to other rights and remedies existing in their favor, apply to any court of competent jurisdictionjurisdiction for specific performance and/or injunctive or other relief in order to enforce, restraining or prevent any violation violations of, the provisions hereof (without posting a bond or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at lawother security).
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Noncompetition and Nonsolicitation. (a) In consideration For [*****], the Seller covenants and agrees that it shall not, and shall not permit, cause or encourage any of its Affiliates to, (i) recruit, offer employment, employ, engage as a consultant, lure or entice away, or in any other manner persuade or attempt to persuade, any Person who is an employee of any of the benefits Acquired Companies to which leave the Executive may be entitled under employ of the terms of this AgreementAcquired Companies; provided, however [*****], the confidential information relating to the Company Seller and its business previously provided to the ExecutiveAffiliates (A) may recruit, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s offer employment to, employ or engage as a consultant, any individual whose employment with the Company (including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests Purchaser or its Affiliates (including the goodwill with which the Executive will Acquired Companies) has been terminated and (B) shall not be associated, and prohibited from engaging in a bona fide general solicitation or advertisement that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or is not specifically directed to any Person who is an employee of any of its affiliatesthe Acquired Companies or from hiring, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not, directly or indirectly:
(i) carry on or engage in Competitive Duties (engaging as a director, employee, consultant, contractor any Person who responds to such solicitation or otherwise) within the Restricted Area for any Competing Business;
advertisement or (ii) solicit (solicit, encourage, initiate or assist another participate in soliciting) any Covered Customer discussions or Prospective Customer for the purpose of inducingnegotiations with, or attempting to induceprovide any information to, such Covered Customer any present client, customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) supplier of any employee, contractor, consultant, supplier, or vendor of the Company Acquired Companies with respect to the termination or any other alteration of its Subsidiarieshis, to terminate, cease her or lessen its relationship with the Company or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant Business of the Company or any of its Subsidiaries or any person who was an employee, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractors, or consultants of the Company or any of its Subsidiaries during the Executive’s employment with the Company)Acquired Companies.
(b) The Executive For [*****] (the “Non-Competition Period”), the Seller covenants and agrees that it shall not, and shall not permit, cause or encourage any of its Affiliates to engage, directly or indirectly, as an owner, consultant or otherwise, in any Competing Business; provided, however, that nothing herein shall prohibit the Company’s Seller or its Affiliates from (i) being a passive owner of not more than five percent (5%) of the outstanding equity of any class of securities of a publicly traded company engaged in such Competing Business, so long as the Seller or its Affiliates have no active participation in the business of such corporation, or (ii) performing any services for Purchaser or its Affiliates, including such services as are contemplated under the Transition Services Agreement. In addition, notwithstanding the foregoing, the Seller and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy Affiliates shall be permitted to consummate the acquisition of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests all or substantially all of the Companyassets or business(es), or the acquisition of a majority (or greater) of the voting power, of any Person engaged in any Competing Business (the “Target”), [*****].
(c) Notwithstanding The Seller hereby acknowledges and agrees that the foregoing, the above-referenced limitations in Sections 6(a)(i) covenants and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained agreements set forth in this Section 6 4.10 are reasonable a material inducement to the Purchaser to enter into this Agreement and do not impose to perform its obligations hereunder, and that the Purchaser may incur a greater restraint than necessary significant loss of the goodwill being purchased as part of the Transactions if the Seller or its Affiliates were to protect breach any of the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if provisions of this Section 4.10. If the final judgment of a court of competent jurisdiction selected pursuant to Section 9.6 declares that any term or provision of this Section 4.10 is judicially determined not to be the caseinvalid or unenforceable, the Company and the Executive specifically parties hereto agree that the limitations contained in court making the determination of invalidity or unenforceability will have the power to reduce the scope, duration, or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement will be reformed to enforceable as so modified after the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation expiration of the covenants contained in this Section 6 will cause irreparable harm to time within which the Company and its Subsidiaries and that monetary damages would not judgment may be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at lawappealed.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Noncompetition and Nonsolicitation. (a) In consideration of the benefits to which the Executive may be entitled under the terms of this Agreement, the confidential information relating to the Company and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s employment with the Company (including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will shall not, directly or indirectly, whether by Executive, through an Affiliate or in partnership or conjunction with, or as an employee, officer, director, manager, member, owner, consultant or agent of, any other Person:
(i) carry while an employee of the Company and during the period ending on the six (6) month anniversary of Executive’s date of termination of employment, engage, directly or engage indirectly, in Competitive Duties activities or businesses (as a directorincluding without limitation by owning any interest in, employeemanaging, consultantcontrolling, contractor participating in, consulting with, advising, rendering services for, or otherwisein any manner engaging in the business of owning, operating or managing any business) within the Restricted Area for United States (including its territories or possessions), and/or other territories (in which the Company, its Affiliates or Subsidiaries conduct business or are actively planning to conduct business as of Executive’s date of termination of employment) that competes or will compete in the United States and/or such other territories with the Company, its Subsidiaries or Affiliates (“Competitive Activities”) or any Competing Businessbusiness that acquires all or substantially all of the assets of, or is otherwise a successor to, the Company (an “Other Employing Entity”);
(ii) solicit while an employee of the Company and during the period ending on the eighteen (18) month anniversary of Executive’s date of termination of employment, solicit, entice, encourage or assist another in soliciting) intentionally influence, or attempt to solicit, entice, encourage or influence, any Covered Customer employee of, or Prospective Customer other Person who performs services for the purpose Company, any Other Employing Entity or any of inducing, their respective Affiliates or attempting Subsidiaries to induce, such Covered Customer resign or Prospective Customer to cease leave the employ or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor engagement of the Company or any of its their respective Affiliates or otherwise hire, employ, engage or contract any such employee or Person, or any other Person who provided services to the Company or any of their respective Affiliates during the six (6) months prior to such hiring, employment, engagement or contracting, to perform services other than for the benefit of the Company, any Other Employing Entity or any of their respective Affiliates or Subsidiaries, in each case other than in the fulfillment of Executive’s duties as President of the Company;
(iii) while an employee of the Company and during the period ending on the eighteen (18) month anniversary of Executive’s date of termination of employment, solicit, entice, encourage, influence, accept payment from, or provide services to, or attempt to terminatesolicit, cease entice, encourage, influence or lessen accept payment from, or assist any other Person, firm or corporation, directly or indirectly, in the solicitation of or providing services to, any Client (as defined below) or any Prospective Client (as defined below), or to alter, reduce or terminate its business relationship with the Company or any of its their respective Affiliates for the direct or indirect benefit of any competitor of the Company, any Other Employing Entity or any of their respective Affiliates or Subsidiaries, in each case other than in the fulfillment of Executive’s duties as President of the Company;
(iv) while an employee of the Company and during the period ending on the eighteen (18) month anniversary of Executive’s date of termination of employment, directly or indirectly request or advise any Client or Prospective Client to alter, reduce, terminate, withdraw, curtail, or cancel the Client’s or Prospective Client’s business with the Company, any Other Employing Entity or any of their respective Affiliates or Subsidiaries, in each case other than in the fulfillment of Executive’s duties as President of the Company; or
(Bv) while an employee of the Company and during the period ending on the eighteen (18) month anniversary of Executive’s date of termination of employment, solicit any agents, advisors, independent contractors or consultants of the Company, any Other Employing Entity or any of their respective Affiliates or Subsidiaries who are under contract or doing business with the Company, any Other Employing Entity or any of their respective Affiliates or Subsidiaries to terminate, reduce or divert business with or from the Company, any Other Employing Entity or any of their respective Affiliates or Subsidiaries, in each case other than in the fulfillment of Executive’s duties as President of the Company.
(vi) For purposes of this Agreement, “Client” means a Person to whom the Company, its Subsidiaries or Affiliates sold goods or provided services, and with whom Executive had contacts, dealings or client relationship responsibilities (either directly or indirectly through supervising other employees who had such responsibilities or otherwise in the course of performing the duties and responsibilities associated with his position) on behalf of a Competing Businessthe Company, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant of the Company Other Employing Entity or any of its Subsidiaries their respective Affiliates or any person who was an employeeSubsidiaries, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the while Executive is employed by the Company for less than twelve (12the “Look Back Period”) months, those persons who were employees, contractors, or consultants of (but if Executive is not employed by the Company or at the time of any of its Subsidiaries during activity described in Section 7(a)(iii) and 7(a)(iv), then the Look Back Period will not be longer than one (1) year prior to Executive’s employment with the Company).
last day of employment, and “Prospective Client” shall mean those Persons (bA) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments Company is actively soliciting or is planning to solicit; or (B) with whom Executive has met or with respect to which Executive has obtained Confidential Information in its business interests, goodwill and confidential information are worthy the course of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations or as a result of his performance of his duties to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Noncompetition and Nonsolicitation. For a period from the date of this Agreement through the termination of my Employment with Employer and for a period from the termination of my Employment with Employer through the last day of the month in which I cease receiving cash severance benefits from the Company, I hereby agree that, regardless of the reason for termination, without obtaining the prior written consent of Employer, I will not, nor will any of my affiliates or representatives, (a) In consideration on my own behalf, on behalf of any other party, circumvent, interfere with, or assist any other party in circumventing, or interfering with the business of the benefits Company; (b) own, manage, operate, finance, conduct business, engage, directly or indirectly, alone or as greater than a 2% shareholder, partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated with, any other business that is competitive with the business of the Company; (c) solicit, attempt to solicit business, do business with, accept or divert business from or otherwise interfere with the Company’s relationship with any person (i) which, during the time of my employment with Employer was an investor, lender, client, customer or had a business relationship with the Company or (ii) to which the Executive may be entitled under Company had made a proposal or presentation within the terms nine-month period prior to my termination of this Agreementemployment; and (d) employ or solicit for employment any employee of the Company, the confidential information relating to induce any employee of the Company and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executiveterminate such employee’s employment with the Company (including new confidential information provided or offer employment to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by anyone the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not, directly or indirectly:
(i) carry on or engage in Competitive Duties (as a director, employee, consultant, contractor or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducinghires, or attempting to inducehire any person whom I know the Company has offered employment. Notwithstanding the foregoing sentence, such Covered Customer or Prospective Customer to cease or reduce its Employer expressly acknowledges that I may accept employment with a large multi-unit employer that possesses a unit that engages in business that is competitive with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with the Company or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant of the Company or any of its Subsidiaries or any person who was an employee, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractors, or consultants of the Company or any of its Subsidiaries during the Executive’s employment with the Company).
(b) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing; provided, that I do not work in or with, or give advice to, the above-referenced limitations unit engaged in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within business that is competitive with the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers business of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although and provided further that I notify the Company and in writing no later than the Executive believe third day after I accept an offer of employment from the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation non-competing unit of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at lawa multi-unit employer.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Samples: Employment Agreement (Amrep Corp.)
Noncompetition and Nonsolicitation. (a) In consideration Executive acknowledges that in the course of his employment with the benefits to which the Executive may Company he will become familiar with Confidential Information and that his services will be entitled under the terms of this Agreementspecial, the confidential information relating unique and extraordinary value to the Company. Executive agrees that the Company has a protectable interest in the Confidential Information, goodwill and its business previously provided to the Executive, and the Company’s promise to provide the specialized knowledge acquired by Executive with future confidential information during the course of the Executive’s his employment with the Company (including new confidential information provided to the Executive in connection withCompany. Therefore, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by that:
(a) NONCOMPETITION. During the Company or any of its affiliates, Employment Period and thereafter for a period of twelve eighteen months thereafter (12) months immediately following the termination of "NONCOMPETE PERIOD"), he shall not, anywhere in the Executive’s employment for whatever reason, the Executive will notUnited States, directly or indirectly:indirectly own, manage, control, participate in, consult with, render services for, or in any manner engage in the Business or any other business engaged in by the Company at the time of Separation.
(b) NONSOLICITATION. During the Noncompete Period, Executive shall not directly or indirectly through another entity (i) carry on induce or engage in Competitive Duties (as a director, employee, consultant, contractor or otherwise) within the Restricted Area for attempt to induce any Competing Business;
(ii) solicit (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with the Company or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant employee of the Company or any of its Subsidiaries to leave the employ of the Company or such Subsidiary, or in any way interfere with the relationship between the Company or any of its Subsidiaries and any employee thereof, (ii) hire any person who was an employee, contractor, or consultant employee of the Company or any of its Subsidiaries at any within 180 days prior to the time during the last twelve (12) months of such employee was hired by the Executive’s employment with the Company , (oriii) induce or attempt to induce any owner of a site location, if the Executive is employed by the Company for less than twelve (12) monthscustomer, those persons who were employeessupplier, contractors, licensee or consultants other business relation of the Company or any of its Subsidiaries during the Executive’s employment to cease doing business with the Company).
Company or such Subsidiary or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and the Company or any of its Subsidiaries or (biv) The Executive agrees that directly or indirectly acquire or attempt to acquire an interest in any business relating to the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding Company or any of its Subsidiaries and with which the foregoing, the above-referenced limitations in Sections 6(a)(i) Company or any of its Subsidiaries has entertained discussions or has requested and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition received information relating to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions acquisition of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement such business by the Company or any of its affiliates, and thereafter for Subsidiaries in the two-year period immediately preceding a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliatesSeparation.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Noncompetition and Nonsolicitation. For a period of five years from and after the Closing Date, neither the Individual Owner nor any of its Affiliates will directly or indirectly through any Affiliate or otherwise, either as owner, principal, manager, agent, consultant, advisor, officer, director, stockholder, partner, investor, lender or employee, supplier or in any other capacity (a) In consideration and whether or not for compensation), carry on, be engaged in or employed by or be a supplier, advisor, director, manager, agent or consultant to or have any financial interest in, any Person that is engaged directly or indirectly or in competition with all or any portion of the benefits Business as conducted as of the Closing Date and/or engaged directly or indirectly in the manufacture of tissue hard rolls for conversion into finished converted product, anywhere in the continental United States or Canada. Nothing in this Section 1 shall be construed to which preclude an Individual Owner from investing in any publicly held company provided that all Individual Owners’ aggregate beneficial ownership of any class of such company’s securities does not exceed 5% of the Executive may be entitled under outstanding securities of such class. For a period of five years from and after the terms of this AgreementClosing Date, the confidential information relating Individual Owner will not recruit, offer employment, employ, engage as a consultant, lure or entice away, or in any other manner persuade or attempt to the Company and its business previously provided to the Executivepersuade, and the Company’s promise to provide the Executive with future confidential information during the course any Person who is an employee of any of the Executive’s employment with the Company (including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company Buyer or any of its affiliates, and thereafter for a period of twelve Affiliates (12including any Transferring Employees) months immediately following to leave the termination employ of the Executive’s employment for whatever reason, the Executive will not, directly or indirectly:
(i) carry on or engage in Competitive Duties (as a director, employee, consultant, contractor or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor of the Company Buyer or any of its Subsidiaries, to terminate, cease or lessen its relationship with Affiliates. If the Company or any of its Subsidiaries, or (B) on behalf final judgment of a Competing Business, engage, employ, court of competent jurisdiction declares that any term or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant provision of the Company or any of its Subsidiaries or any person who was an employee, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractors, or consultants of the Company or any of its Subsidiaries during the Executive’s employment with the Company).
(b) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 1 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoinginvalid or unenforceable, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically parties hereto agree that the limitations contained in court making the determination of invalidity or unenforceability will have the power to reduce the scope, duration, or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement will be reformed to enforceable as so modified after the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation expiration of the covenants contained in this Section 6 will cause irreparable harm to time within which the Company and its Subsidiaries and that monetary damages would not judgment may be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at lawappealed.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Samples: Asset Purchase Agreement (Cellu Tissue Holdings, Inc.)
Noncompetition and Nonsolicitation. You agree that you shall not, directly or indirectly, without the prior written consent of the Company:
(a) In consideration while an employee of the benefits to Company and during the one-year period following termination of employment, engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business), in any geographic location in which the Executive may be entitled under Company engages (or in which the terms Company bas been actively planning to engage) as of this Agreementthe date of termination of your employment, the confidential information relating to that compete directly with the Company and its business previously provided to the Executivesubsidiaries, and the Company’s promise to provide the Executive with future confidential information during the course any other affiliates of the Executive’s employment with Company whose business is related to that of the Company (including new confidential in the business of television broadcasting, newspaper publishing, or other digital information provided to the Executive or entertainment services, or any other business in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not, directly or indirectly:
(i) carry on or engage in Competitive Duties (as a director, employee, consultant, contractor or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit affiliates is engaged (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor of which the Company or any of its Subsidiariesaffiliates has been actively planning to engage) at the time of termination (in all cases other than businesses that are immaterial to the Company), to terminateincluding any activities or businesses of the Company, cease its subsidiaries or lessen its relationship such affiliates that involve any person or entity with whom the Company has engaged in substantive dialogue at the time of termination of your employment regarding entry into a material business relationship (but only to the extent that a material business relationship is consummated with any such person or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant of the Company or any of its Subsidiaries or any person who was an employee, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last entity within twelve (12) months following the termination of your employment) (“Competitive Activities”), or assist any person or entity in any way to do, or attempt to do, anything prohibited by this Section 1(a); provided, however, that the foregoing shall not prevent you from providing services as a consultant, employee, advisor, or otherwise with a person or entity that engages in Competitive Activities, if such service relationship is restricted solely to one or more portions of the Executive’s employment with operations and businesses of such person or entity, such portions do not engage in Competitive Activities, and you undertake not to, and do not, have any discussions with, or participate in, the governance, management or operations of such person or entity or any business segments thereof that engage in Competitive Activities; or
(b) while an employee of the Company and during the one-year period following termination of employment for any reason, (orA) solicit, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractorsrecruit or hire, or consultants attempt to solicit, recruit or hire, any employees of the Company or any of its Subsidiaries persons who have worked for the Company during the Executive’s employment 12 month period immediately preceding such solicitation, recruitment or hiring or attempt thereof (other than your secretary/executive assistant); (B) intentionally interfere with the relationship of the Company with any person or entity who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, developer, subcontractor, licensee, licensor or other business relation of, the Company).
; or (bC) The Executive agrees assist any person or entity in any way to do, or attempt to do, anything prohibited by clause (A) or (B) above; provided that the Company’s and its Subsidiaries’ substantial investments preceding clause (A) shall not prohibit you from (x) conducting a general solicitation made by means of a general purpose advertisement not specifically targeted at employees or other persons or entities described in its business interestsclause (A) or (y) soliciting or hiring any employee or other person or entity described in clause (A) who is referred to you by search firms, goodwill and confidential information are worthy employment agencies or other similar entities, provided that such firms, agencies or entities have not been instructed by you to solicit any such employee or person or entity or category thereof. The periods during which the provisions of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than 1 apply shall be tolled during (and shall be deemed automatically extended by) any hardship period in which you are in violation of the Executive might experience provisions of this Section 1, to the extent permitted by complying with its termslaw. The Executive agrees provisions of Section l(a) shall not be deemed breached as a result of your passive ownership of: (i) less than an aggregate of 2% of any class of securities of an entity engaged, directly or indirectly, in Competitive Activities, so long as you do not actively participate in the business of such entity; provided, however, that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement such securities are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and listed on a national securities exchange; or (ii) shall not apply less than an aggregate of 1% in those portions value of the Restricted Area located within the State any instrument of Oklahoma. Insteadindebtedness of an entity engaged, the Executive agrees thatdirectly or indirectly, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliatesCompetitive Activities.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Noncompetition and Nonsolicitation. (a) In consideration of 4.1 As an inducement for Xxxxxx to enter into this Agreement and to pay the benefits to which the Executive may be entitled under the terms of this AgreementNoncompetition Payment, the confidential information relating to the Company and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s employment with the Company (including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive Stockholder agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve two (122) months immediately following years after the termination Closing no Stockholder will knowingly (including without limitation after notification by Xxxxxx), directly or indirectly, engage or invest in, own, manage, operate, finance, control or participate in the ownership, management, operation, financing or control of, be employed by, serve as a director of, or be a consultant or independent contractor for, or render services or advice to, or guarantee any obligation of, any Person engaged in or with the assistance of Stockholder directly planning to become engaged in any industry or any other business whose products or activities compete anywhere in the world in whole or in part with the Acquired Business or the Xxxxxx Business; provided, however, that any Stockholder may purchase or otherwise acquire up to (but not more than) one percent of any class of securities of any enterprise (but without otherwise participating in the activities of such enterprise) if such securities are listed on any national or regional securities exchange or have been registered under Section 12(g) of the Executive’s employment Securities Exchange Act of 1934. Each Stockholder agrees that this covenant is reasonable with respect to its duration, geographical area and scope.
4.2 As a further inducement for whatever reasonXxxxxx to enter into this Agreement and to pay the Noncompetition Payment, Stockholder agrees that for a period of two (2) years after the Executive will notClosing, each Stockholder agrees not to, directly or indirectly:
(ia) carry on induce or engage in Competitive Duties (as attempt to so induce any Xxxxxx Employee to leave the employ of a director, employee, consultant, contractor or otherwise) within the Restricted Area for any Competing BusinessXxxxxx Entity;
(iib) solicit in any way interfere with the employment relationship between a Xxxxxx Entity and any Xxxxxx Employee;
(c) hire, offer employment to, employ or assist another in soliciting) otherwise engage as an employee, independent contractor or otherwise any Covered Customer Xxxxxx Employee, unless the applicable Xxxxxx entity gives its written consent to such offer, employment or Prospective Customer for the purpose of inducingrelationship, or attempting to induce, unless at least six months have passed since such Covered Customer or Prospective Customer to cease or reduce its business person's employment relationship with the Company or its Subsidiaries, or not to do business with the Company or its SubsidiariesXxxxxx was terminated; or
(iiid) (A) encourage (induce or assist another in encouraging) attempt to induce any employee, contractor, consultantcustomer, supplier, licensee or vendor other Person to cease doing business with a Xxxxxx Entity or in any way materially interfere with the relationship between any such customer, supplier, licensee or other business entity and a Xxxxxx Entity.
4.3 Each Stockholder agrees that he (or it) will not, directly or indirectly, solicit the business of any Person known to such Stockholder to be a customer of the Company Xxxxxx Entities, whether or any of its Subsidiariesnot such Stockholder had personal contact with such Person, with respect to terminate, cease products or lessen its relationship activities which compete in whole or in part with the Company or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant of the Company or any of its Subsidiaries or any person who was an employee, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractors, or consultants of the Company or any of its Subsidiaries during the Executive’s employment with the Company).
(b) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries Xxxxxx Business or the Company’s affiliatesAcquired Business.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Samples: Noncompetition, Nondisclosure and Nonsolicitation Agreement (Harris Interactive Inc)
Noncompetition and Nonsolicitation. (a) In consideration For purposes of the benefits to which the Executive may be entitled under the terms Sections 5, 6, 7, 8, 9, 10 and 1 1 of this Agreement, the confidential information relating references to the Company shall include its subsidiaries and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s employment with the Company Affiliates.
(including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the a) Executive agrees that Executive shall not, while employed or otherwise engaged by an employee of the Company or any of its affiliates, and thereafter for a period of during the twelve (12) months immediately month period following the termination of the Executive’s employment for whatever reason(such collective duration, the Executive will not"Restriction Period"), directly or indirectly, without the prior written consent of the Company:
(i) carry on or engage in Competitive Duties (as a director, employee, consultant, contractor or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage engage in activities or businesses (or assist another in encouraging) including without limitation by owning any employeeinterest in, contractormanaging, consultantcontrolling, supplierparticipating in, consulting with, advising, rendering services for, or vendor in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses of the Company or any of its Subsidiaries, to terminate, cease subsidiaries or lessen its relationship with the Company controlled affiliates or any of its Subsidiaries, entity owned by the Company("Competitive Activities") or (B) on behalf of a Competing Business, engage, employassist any Person in any way to do, or solicit attempt to do, anything prohibited by this Section 5(a)(i)(A) above; or
(ii) perform any action, activity or contact for employment course of conduct which is substantially detrimental to the businesses or engagement business reputations of the Company and involves (A) soliciting, recruiting or hiring (or assist another in such activityattempting to solicit, recruit or hire) any employee, contractor or consultant employees of the Company or any of its Subsidiaries or any person Persons who was an employee, contractor, or consultant of have worked for the Company or any of its Subsidiaries at any time during the last twelve (12) months month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Executive’s Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company (or, if the Executive with any Person who or which is employed by the Company for less than twelve (12) months, those persons who were employees, contractorsor otherwise engaged to perform services for, or consultants any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 5(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Executive is in violation of the Company or any provisions of its Subsidiaries during the Executive’s employment with the Company)this Section 5(a) unless provided below.
(b) The provisions of Section 5(a) shall not be deemed breached as a result of Executive's passive ownership of less than an aggregate of three percent (3%) of any class of securities listed on a national securities exchange of a Person that is engaged, directly or indirectly, in Competitive Activities, so long as Executive agrees that does not actively participate in the Company’s and its Subsidiaries’ substantial investments in its business interestsof such Person; provided, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need that, for the protection afforded sake of clarity, Executive shall remain bound by the other restrictive covenants in this agreement, including but not limited to Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Companyhereof.
(c) Notwithstanding the foregoingfact that any provision of this Section 5 is determined not to be specifically enforceable, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions Company may nevertheless be entitled to recover monetary damages as a result of the Restricted Area located within the State Executive's material breach of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliatessuch provision.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Executive acknowledges that Executive is being provided with significant additional consideration (to which Executive is not otherwise entitled), including restricted stock units, to induce Executive to enter into this Agreement. Executive expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Executive further acknowledges that although Executive’s violation or threatened or attempted violation of 's compliance with the covenants contained in this Section 6 will cause irreparable harm Sections 5, 6, 7, 8 and 9 may prevent Executive from earning a livelihood in a business similar to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach business of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty Executive's experience and disclosure, which Executive acknowledges and agrees capabilities are attendant to the executive and managerial positions such that the Executive has held other opportunities to earn a livelihood and will hold with the Companyadequate means of support for Executive and Executive's dependents.
Appears in 1 contract
Samples: Employment Agreement (Infrastructure & Energy Alternatives, Inc.)
Noncompetition and Nonsolicitation. (a) In consideration For purposes of the benefits to which the Executive may be entitled under the terms Sections 5, 6, 7, 8, 9, 10 and 11 of this Agreement, references to the confidential information relating Company shall include its subsidiaries and any Affiliates of the Company that are Controlled by the Company.
(a) Executive agrees that Executive shall not, directly or indirectly, without the prior written consent of the Company:
(i) except as may be specifically approved by the Board, while an employee of the Company and during the two (2)-year period following termination of employment for any reason (or in the case of a Company Non-Renewal Termination or by a non-renewal of the Executive, during the one (1)-year period following such termination), engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business), in any geographic location in which the Company engages (or in which the Company has been actively planning to engage) as of the date of termination of Executive’s employment, that compete directly with the Company and its business previously provided to the Executivesubsidiaries, and the Company’s promise to provide the Executive with future confidential information during the course any other Affiliates of the Executive’s employment with Company whose business is related to that of the Company (including new confidential in the business of television broadcasting, newspaper publishing, or other digital information provided to the Executive or entertainment services, or any other business in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not, directly or indirectly:
(i) carry on or engage in Competitive Duties (as a director, employee, consultant, contractor or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit Affiliates is engaged (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor of which the Company or any of its SubsidiariesAffiliates has been actively planning to engage) at the time of termination (in all cases other than businesses that are immaterial to the Company), to terminateincluding any activities or businesses of the Company, cease its subsidiaries or lessen its relationship such Affiliates that involve any person or entity with whom the Company has engaged in substantive dialogue at the time of termination of Executive’s employment regarding entry into a material business relationship (but only to the extent that a material business relationship is consummated with any such person or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant of the Company or any of its Subsidiaries or any person who was an employee, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last entity within twelve (12) months following the termination of Executive’s employment) (“Competitive Activities”), or assist any Person in any way to do, or attempt to do, anything prohibited by this Section 5(a)(i); provided that the foregoing shall not prevent Executive from (A) providing services as a consultant, employee, advisor, or otherwise with a Person that engages in Competitive Activities, if such service relationship is restricted solely to one or more portions of the operations and businesses of such Person, such portions do not engage in Competitive Activities, and Executive undertakes not to, and does not, have any discussions with, or participate in, the governance, management or operations of such Person or any business segments thereof that engage in Competitive Activities; or unless the Company reasonably expects it to result in excess parachute payments for Executive under Section 280G of the Code, (B) providing services as a consultant, employee, advisor, or otherwise with, to or on behalf of: (1) the Big Ten Network, or (2) any Chicago regional sports network (including, without limitation, any team specific network); or
(ii) while an employee of the Company and during the two-year period following termination of employment for any reason (or in the case of a termination upon the expiration of the Initial Term in connection with a timely Company Non-Renewal Termination or by a non-renewal of the Executive’s employment with , during the Company one-year period following such termination), (orA) solicit, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractorsrecruit or hire, or consultants attempt to solicit, recruit or hire, any employees of the Company or any of its Subsidiaries Persons who have worked for the Company during the 12 month period immediately preceding such solicitation, recruitment or hiring or attempt thereof (other than Executive’s employment secretary/executive assistant); (B) intentionally interfere with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, developer, subcontractor, licensee, licensor or other business relation of, the Company; or (C) assist any Person in any way to do, or attempt to do, anything prohibited by Section 5(a)(ii)(A) or (B) above; provided that the preceding Section 5(a)(ii)(A) shall not prohibit Executive from (x) conducting a general solicitation made by means of a general purpose advertisement not specifically targeted at employees or other Persons described in Section 5(a)(ii)(A) or (y) soliciting or hiring any employee or other Person described in Section 5(a)(ii)(A) who is referred to Executive by search firms, employment agencies or other similar entities, provided that such firms, agencies or entities have not been instructed by Executive to solicit any such employee or Person or category thereof. The periods during which the provisions of Section 5(a) apply shall be tolled during (and shall be deemed automatically extended by) any period in which Executive is in violation of the provisions of this Section 5(a), to the extent permitted by law.
(b) The provisions of Section 5(a) shall not be deemed breached as a result of Executive’s passive ownership of: (i) less than an aggregate of 2% of any publicly traded class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Executive agrees that does not actively participate in the Company’s and its Subsidiaries’ substantial investments business of such Person; or (ii) less than an aggregate of 1% in its business interestsvalue of any instrument of indebtedness of a Person engaged, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to timedirectly or indirectly, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the CompanyCompetitive Activities.
(c) Notwithstanding Executive acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Executive acknowledges that Executive is being provided with significant additional consideration (to which Executive is not otherwise entitled) to induce Executive to enter into this Agreement. In light of the foregoing, and the above-referenced limitations Company’s and Executive’s mutual understanding that in the course of Executive’s duties with the Company he will acquire Confidential Information that would be of significant benefit to a subsequent employer that competes with the Company, Executive expressly acknowledges and agrees that each and every restraint imposed by this Agreement (specifically including Section 5(a)) is reasonable with respect to subject matter, time period and geographical area. Executive further acknowledges that although Executive’s compliance with the covenants contained in Sections 6(a)(i) 5, 6, 7, 8 and (ii) shall not apply 9 may prevent Executive from earning a livelihood in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition a business similar to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers business of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation experience and capabilities are such that Executive has other opportunities to earn a livelihood and adequate means of the covenants contained in this Section 6 will cause irreparable harm to the Company support for Executive and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at lawdependents.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Noncompetition and Nonsolicitation. (a) In consideration of the benefits to which the 3.1 The Executive may be entitled under the terms of this Agreement, the confidential information relating to the Company and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information agrees that during the course of the Executive’s employment with the Company Partnership, and continuing for the Restricted Period following the date on which the Executive’s employment with the Partnership terminates for any reason, the Executive will not directly or indirectly, own, manage, operate, control (including new confidential information provided to the Executive indirectly through a debt or equity investment), provide services to, be employed by, or be connected in connection any manner with, and as any person or entity engaged in any business that is (i) located in a result of, the Merger), and so as region with respect to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associatedhad substantial responsibilities while employed by the Partnership, and that (ii) competitive, with (A) the line of business or businesses of the Partnership or its Subsidiaries in which the Executive will help build was employed with during the Executive’s employmentemployment (including any prospective business to be developed or acquired that was proposed at the date of termination), or (B) any other business of the Partnership or its Subsidiaries with respect to which the Executive had substantial exposure during such employment. For avoidance of doubt, if the Executive is a senior officer of the Partnership, the restriction contained herein shall relate to all lines of business of the Partnership and all of its Subsidiaries.
3.2 The Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of during the Executive’s employment with the Partnership, and for whatever reasonthe two (2) year period thereafter, the Executive will not, directly or indirectly:
, on the Executive’s own behalf or on behalf of another person or entity (i) carry on solicit, recruit, or engage in Competitive Duties (as a directorhire any individual who is, employee, consultant, contractor or otherwise) who within the Restricted Area for any Competing Business;
six (ii6) solicit (or assist another in soliciting) any Covered Customer or Prospective Customer for months prior to such action was, an employee of the purpose of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with the Company Partnership or its Subsidiaries, or not to do business with (ii) solicit, aid, or induce any customer of the Company Partnership or its Subsidiaries; or
Subsidiaries to purchase goods or services then sold by the Partnership or its Subsidiaries from another person or entity, or assist or aid any other persons or entity in identifying or soliciting any such customer, or (iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor otherwise interfere with the relationship of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with the Company or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant of the Company Partnership or any of its Subsidiaries or any person who was an employee, contractor, or consultant of the Company or with any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractorscustomers, agents, representatives or consultants of the Company or any of its Subsidiaries during the Executive’s employment with the Company)suppliers.
(b) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Samples: Executive Common Unit and Profits Unit Agreement (Core & Main, Inc.)
Noncompetition and Nonsolicitation. (a) In consideration For purposes of the benefits to which the Executive may be entitled under the terms Sections 5, 6, 7, 8, 9, 10 and 11 of this Agreement, references to the confidential information relating Company shall include its subsidiaries and any Affiliates of the Company that are Controlled by the Company.
(a) Executive agrees that Executive shall not, directly or indirectly, without the prior written consent of the Company:
(i) while an employee of the Company and during the Non-Compete Period, engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business), in any geographic location in which the Company engages (or in which the Company has been actively planning to engage) as of the date of termination of Executive’s employment, that compete directly with the Company and its business previously provided to the Executivesubsidiaries, and the Company’s promise to provide the Executive with future confidential information during the course any other Affiliates of the Executive’s employment with Company whose business is related to that of the Company (including new confidential in the business of television broadcasting, newspaper publishing, or other digital information provided to the Executive or entertainment services, or any other business in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not, directly or indirectly:
(i) carry on or engage in Competitive Duties (as a director, employee, consultant, contractor or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit Affiliates is engaged (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor of which the Company or any of its SubsidiariesAffiliates has been actively planning to engage) at the time of termination (in all cases other than businesses that are immaterial to the Company), to terminateincluding any activities or businesses of the Company, cease its subsidiaries or lessen its relationship such Affiliates that involve any person or entity with whom the Company has engaged in substantive dialogue at the time of termination of Executive’s employment regarding entry into a material business relationship (but only to the extent that a material business relationship is consummated with any such person or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant of the Company or any of its Subsidiaries or any person who was an employee, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last entity within twelve (12) months following the termination of Executive’s employment) (“Competitive Activities”) or assist any Person in any way to do, or attempt to do, anything prohibited by this Section 5(a)(i); provided that the foregoing shall not prevent Executive from providing services as a consultant, employee, advisor, or otherwise with a Person that engages in Competitive Activities, if such service relationship is restricted solely to one or more portions of the Executive’s employment with operations and businesses of such Person, such portions do not engage in Competitive Activities, and Executive undertakes not to, and does not, have any discussions with, or participate in, the governance, management or operations of such Person or any business segments thereof that engage in Competitive Activities; or
(ii) while an employee of the Company and during the Non-Compete Period, (orA) solicit, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractorsrecruit or hire, or consultants attempt to solicit, recruit or hire, any employees of the Company or any of its Subsidiaries Persons who have worked for the Company during the 12 month period immediately preceding such solicitation, recruitment or hiring or attempt thereof (other than Executive’s employment secretary/executive assistant); (B) intentionally interfere with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, developer, subcontractor, licensee, licensor or other business relation of, the Company; or (C) assist any Person in any way to do, or attempt to do, anything prohibited by Section 5(a)(ii)(A) or (B) above; provided that the preceding Section 5(a)(ii)(A) shall not prohibit Executive from (x) conducting a general solicitation made by means of a general purpose advertisement not specifically targeted at employees or other Persons described in Section 5(a)(ii)(A) or (y) soliciting or hiring any employee or other Person described in Section 5(a)(ii)(A) who is referred to Executive by search firms, employment agencies or other similar entities, provided that such firms, agencies or entities have not been instructed by Executive to solicit any such employee or Person or category thereof. The periods during which the provisions of Section 5(a) apply shall be tolled during (and shall be deemed automatically extended by) any period in which Executive is in violation of the provisions of this Section 5(a), to the extent permitted by law.
(b) The provisions of Section 5(a) shall not be deemed breached as a result of Executive’s passive ownership of: (i) less than an aggregate of 2% of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Executive agrees does not actively participate in the business of such Person; provided, however, that the Company’s and its Subsidiaries’ substantial investments such securities are listed on a national securities exchange; or (ii) less than an aggregate of 1% in its business interestsvalue of any instrument of indebtedness of a Person engaged, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to timedirectly or indirectly, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the CompanyCompetitive Activities.
(c) Notwithstanding Executive acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Executive acknowledges that Executive is being provided with significant additional consideration (to which Executive is not otherwise entitled) to induce Executive to enter into this Agreement. In light of the foregoing, and the above-referenced limitations Company’s and Executive’s mutual understanding that in the course of Executive’s duties with the Company he will acquire Confidential Information that would be of significant benefit to a subsequent employer that competes with the Company, Executive expressly acknowledges and agrees that each and every restraint imposed by this Agreement (specifically including Section 5(a)) is reasonable with respect to subject matter, time period and geographical area. Executive further acknowledges that although Executive’s compliance with the covenants contained in Sections 6(a)(i) 5, 6, 7, 8 and (ii) shall not apply 9 may prevent Executive from earning a livelihood in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition a business similar to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers business of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation experience and capabilities are such that Executive has other opportunities to earn a livelihood and adequate means of the covenants contained in this Section 6 will cause irreparable harm to the Company support for Executive and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at lawdependents.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Samples: Employment Agreement (Chicagoland Television News, LLC)
Noncompetition and Nonsolicitation. Since the Consultant has obtained in the course of his employment with the Company, and is likely to obtain in the course of his service as a consultant hereunder, knowledge of trade names, trade secrets, know-how, products and services (a) In consideration of the benefits to which the Executive may be entitled including products and services under the terms of this Agreementdevelopment), the techniques, methods, lists, computer programs and software and other confidential information relating to the Company and its business previously provided to the ExecutiveAffiliates, and their employees, clients, business or business opportunities, the Company’s promise to provide the Executive with future confidential information Consultant hereby undertakes that, during the course period beginning on the date hereof and ending on December 31, 2012:
(a) the Consultant will not (either alone or jointly with or on behalf of the Executive’s others and whether directly or indirectly) encourage, entice, solicit or endeavor to encourage, entice or solicit away from employment with the Company or its Affiliates, or hire or cause to be hired, any officer or senior underwriting, claims, actuarial or business development employee of the Insurance Segment of the Company or its Affiliates (including new confidential information provided to or any individual who was within the Executive in connection with, and as a result of, prior twelve months such an officer or employee of the MergerCompany or its Affiliates), or encourage, entice, solicit or endeavor to encourage, entice or solicit any such officer or employee to violate the terms of any employment agreement or arrangement between such individual and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, Affiliates;
(b) the Consultant will not (either alone or jointly with or on behalf of others and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not, whether directly or indirectly:
(i) carry on interfere with or engage in Competitive Duties (as a director, employee, consultant, contractor disrupt or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit (seek to interfere with or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) disrupt (A) encourage (the relationships between the Company and its Affiliates, on the one hand, and any customer or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor client of the Company and its Affiliates, on the other hand, (including any insured or any reinsured party) who during the period of its Subsidiaries, to terminate, cease twenty-four months immediately preceding the date of this Agreement shall have been such a customer or lessen its relationship with the Company or any of its Subsidiariesclient, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant of the Company or any of its Subsidiaries or any person who was an employee, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractors, or consultants of the Company or any of its Subsidiaries during the Executive’s employment with the Company).
(b) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm supply to the Company and its Subsidiaries Affiliates of any services by any supplier or agent or broker who during the period of twenty-four months immediately preceding the date of this Agreement shall have supplied services to any such person, nor will the Consultant interfere or seek to interfere with the terms on which such supply or agency or brokering services during such period as aforesaid have been made or provided; and
(c) the Consultant will not (either alone or jointly with or on behalf of others and whether directly or indirectly) whether as an employee, consultant, partner, principal, agent, distributor, representative or stockholder (except solely as a less than one percent stockholder of a publicly traded company), engage in any activities in Bermuda, the United States or greater London if such activities are competitive with the businesses that monetary damages would not be sufficient remedy for (i) are then being conducted by the Company or its Affiliates and (ii) during the period of the Consultant’s employment or consultancy were either being conducted by the Company or its Affiliates or actively being developed by the Company or its Affiliates. For purposes of this Agreement, an “Affiliate” of the Company includes any breach of these sectionsperson, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with the Company, and such term shall specifically include, without limitation, the Company’s majority-owned subsidiaries. The Executive agrees limitations on the Consultant set forth in this Section 6 shall also apply to any agent or other representative acting on behalf of the Consultant. While the restrictions aforesaid are considered by both parties to be reasonable in all the circumstances it is recognized that restrictions of the nature in question may fail for reasons unforeseen and accordingly it is hereby declared and agreed that if any of such restrictions or the geographic, duration or other scope thereof shall be adjudged to be void as going beyond what is reasonable in the circumstances for the protection of the interests of the Company and its Subsidiaries shall Affiliates but would be entitled as a matter of right to specific performance valid if part of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, wording thereof were deleted and/or the periods (if any) thereof reduced and/or geographic or other appropriate judicial remedy, writ or order, area dealt with thereby reduced in any court of competent jurisdiction, restraining any violation or further violation of scope then said restrictions shall apply with such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm modifications as may be necessary to make them valid and without any showing that the Company or its Subsidiaries do not have an adequate remedy at laweffective.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Samples: Consulting Agreement (Xl Group PLC)
Noncompetition and Nonsolicitation. (a) In consideration of the benefits to which the Executive may be entitled under the terms of this AgreementNo Stockholder will, the confidential information relating to the Company and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s employment with the Company (including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve four (124) months immediately years following the termination of the Executive’s employment Closing Date, for whatever reason, the Executive will notany reason whatsoever, directly or indirectly:, for himself or on behalf of or in conjunction with any Person (as defined below):
(ia) carry on Own, manage, control, participate in, consult with, render services for, or in any manner engage in Competitive Duties any business selling products or services in direct competition with any business conducted by AppNet or the Surviving Corporation that the Stockholder actively assisted or was involved with during his employment with the Surviving Corporation or AppNet at any location in the Territory (as a director, employee, consultant, contractor or otherwise) within the Restricted Area for any Competing Businessdefined below);
(iib) solicit (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducingOwn, manage, control, participate in, consult with, render services for, or attempting in any manner engage, in any business selling products or services in direct competition with AppNet or the Surviving Corporation within the field of internet strategy consulting at any location in the Territory;
(c) Induce or attempt to induceinduce any employee of AppNet or the Surviving Corporation to leave the employ of AppNet or the Surviving Corporation, such Covered Customer or Prospective Customer to cease or reduce its business in any way interfere with the Company relationship between AppNet or its Subsidiaries, or not to do business with the Company or its Subsidiaries; orSurviving Corporation and any employee thereof;
(iiid) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with the Company or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant of the Company or any of its Subsidiaries or Hire any person who was an employee, contractor, employee of AppNet or consultant of the Company or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractors, or consultants of the Company or any of its Subsidiaries during the Executive’s employment with the Company).
(b) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located Surviving Corporation within the State of Oklahoma. Instead, the Executive agrees that, in addition one year prior to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions time of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.such hiring;
(e) The Executive acknowledges that Service, solicit or accept any business from any customer or licensee of AppNet or the Executive’s violation Surviving Corporation for the purpose of competing with AppNet or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.Surviving Corporation;
(f) The covenants made by Induce or attempt to induce any owner of a site location, customer, supplier, licensee or other business relation of AppNet or the Executive Surviving Corporation to cease doing business with AppNet or the Surviving Corporation or in this Agreement are any way interfere with the relationship between any such customer, supplier, licensee or business relation and AppNet or the Surviving Corporation;
(g) Directly or indirectly disclose to any other person the name or address of any customer of AppNet or the Surviving Corporation for the purpose of competing with AppNet or the Surviving Corporation; or
(h) Directly or indirectly acquire or attempt to acquire an interest in addition to all other duties owed by the Executive any business relating to the Companybusiness of AppNet or the Surviving Corporation and with which, includingto such Stockholder's knowledge, without limitation, fiduciary duties of loyalty AppNet or the Surviving Corporation has entertained discussions or has requested and disclosure, which Executive acknowledges and agrees are attendant received information relating to the executive and managerial positions that acquisition of such business by AppNet or the Executive has held and will hold Surviving Corporation in the one-year period immediately preceding the termination of employment of the Stockholder with the CompanySurviving Corporation or AppNet.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Commerce One Inc)
Noncompetition and Nonsolicitation. (a) In consideration Without the prior written consent of the benefits Board, during the period that the Executive is employed by Employer and, in the event the Executive terminates her employment with the Employer for any reason other than as a result of a material breach by the Employer of any of the Employer's obligations under this Agreement, or any other agreement to which the Executive may be entitled under the terms of this Agreement, the confidential information relating to the Company and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s employment with the Company Employer are now or hereafter parties, for six (including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve (126) months immediately following the termination of the Executive’s employment for whatever reasonthereafter, the Executive will not, directly or indirectly:
(i) carry on or engage in Competitive Duties (, whether as a directorowner, partner, shareholder, consultant, agent, employee, consultant, contractor co-venturer or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with the Company or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employparticipate, assist or solicit or contact for employment or engagement invest in any Competing Business (or assist another in such activity) any employee, contractor or consultant as hereinafter defined). Without the prior written consent of the Company or any of its Subsidiaries or any person who was an employeeBoard, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if period that the Executive is employed by the Company Employer and, (x) in the event of the termination of the Executive's employment by the Employer with Cause or (y) in the event the Executive terminates her employment with the Employer for less any reason other than for Good Reason or as a result of a material breach by the Employer of any of the Employer's obligations under this Agreement, or any other agreement to which the Executive and the Employer are now or hereafter parties, for twelve (12) monthsmonths thereafter, the Executive will refrain from directly or indirectly employing, attempting to employ, recruiting or otherwise soliciting, inducing or influencing any person to leave employment with the Employer, and also will refrain from soliciting or encouraging any customer or supplier to terminate or otherwise modify adversely its business relationship with the Employer. The Executive understands that the restrictions set forth in this Section 7(d) are intended to protect the Employer's interest in their Confidential Information and established employee, customer and supplier relationships and goodwill, and agrees that such restrictions are reasonable and appropriate for this purpose. For purposes of this Agreement, the term "Competing Business" shall mean any business that provides or intends to provide the same or similar services as those persons who were employees, contractors, or consultants of provided by the Company Employer or any of its Subsidiaries during subsidiaries in any geographic area then served by Employer (which for this purpose only shall be defined as being within 100 miles of any office or data center currently used or operated by the Executive’s employment with the Company).
(b) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than Employer or any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests subsidiary of the Company.
(cEmployer) and/or the Employer or any of their subsidiaries. Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(iExecutive may own up to two percent (2%) and (ii) shall not apply in those portions of the Restricted Area located within the State outstanding stock of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliatespublicly-held corporation.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Noncompetition and Nonsolicitation. (a) In consideration of During the benefits to which the Executive may be entitled under the terms of this Agreement, the confidential information relating to Executive’s employment with the Company and its business previously provided to either (x) for 12 months thereafter, or (y) if the Executive’s employment terminates during a Protection Period, and 24 months thereafter, regardless of the reason for the termination, the Executive (i) will not, directly or indirectly, whether as owner, partner, shareholder, consultant, agent, employee, co-venturer or otherwise, engage, participate, assist or invest in any Competing Business (as hereinafter defined); (ii) will refrain from directly or indirectly retaining, employing, attempting to employ or recruiting any person who is an employee or independent contractor of the Company’s promise , or otherwise soliciting, inducing or influencing any person to provide leave employment with the Executive with future confidential information during Company (other than terminations of employment of subordinate employees undertaken in the course of the Executive’s employment with the Company Company); and (including new confidential information provided iii) will refrain from soliciting or encouraging any customer or supplier to terminate or otherwise modify adversely its business relationship with the Company. The Executive understands that the restrictions set forth in connection with, and as a result of, the Merger), and so as this Section 7(d) are intended to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associatedinterest in its Confidential Information and established employee, independent contractor, customer and supplier relationships and goodwill, and agrees that the Executive will help build during the Executive’s employment)such restrictions are reasonable and appropriate for this purpose. For purposes of this Agreement, the Executive agrees term “Competing Business” shall mean a business that while employed or otherwise engaged by is (x) competitive with any business which the Company or any of its affiliatesaffiliates has conducted, and thereafter for a period of twelve (12) months immediately following or has invested significant resources in evaluating or preparing to conduct, at any time during the termination employment of the Executive’s employment for whatever reason, and (y) is conducted in any country in the Executive will not, directly or indirectly:
(i) carry on or engage world in Competitive Duties (as a director, employee, consultant, contractor or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor of which the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with the Company or any of its Subsidiariesaffiliates has conducted, or (B) on behalf of a Competing Businesshas invested significant resources in evaluating or preparing to conduct, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant of the Company or any of its Subsidiaries or any person who was an employee, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last twelve (12) months employment of the Executive’s employment with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractors, or consultants of the Company or any of its Subsidiaries during the Executive’s employment with the Company).
(b) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(iExecutive may own up to two percent (2%) and (ii) shall not apply in those portions of the Restricted Area located within the State outstanding securities of Oklahoma. Insteada publicly held Person which constitutes or is affiliated with a Competing Business (each, the Executive agrees that, in addition to the limitations in Section 6(a)(iiia “Permitted Investments”), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Noncompetition and Nonsolicitation. (a) In consideration of the benefits to which the Executive may be entitled under the terms of this Agreement, the confidential information relating to the Company and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s employment with the Company (including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the The Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will shall not, directly or indirectly, whether by the Executive, through an affiliate or in partnership or conjunction with, or as an employee, officer, director, manager, member, owner, consultant or agent of, any other Person:
(i) carry while an employee of the Company and during the period ending on the 12-month anniversary of the Executive’s date of termination of employment, engage, directly or engage indirectly, in Competitive Duties activities or businesses (as a directorincluding, employeewithout limitation, consultantby owning any interest in, contractor managing, controlling, participating in, consulting with, advising, rendering services for, or otherwisein any manner engaging in the business of owning, operating or managing any business) within the Restricted Area for United States (including its territories or possessions), and/or other territories (in which the Company, its affiliates or subsidiaries conduct business or are actively planning to conduct business as of the Executive’s date of termination of employment) that competes or will compete in the United States and/or such other territories with the Company, its subsidiaries or affiliates (“Competitive Activities”) or any Competing Businessbusiness that acquires all or substantially all of the assets of, or is otherwise a successor to, the Company (an “Other Employing Entity”);
(ii) solicit (while an employee of the Company and during the period ending on the 12-month anniversary of the Executive’s date of termination of employment, solicit, entice, encourage or assist another in soliciting) intentionally influence, or attempt to solicit, entice, encourage or influence, any Covered Customer employee of, or Prospective Customer other Person who performs services for the purpose Company, any Other Employing Entity or any of inducing, their respective affiliates or attempting subsidiaries to induce, such Covered Customer resign or Prospective Customer to cease leave the employ or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor engagement of the Company or any of its Subsidiariestheir respective affiliates or otherwise hire, employ, engage or contract any such employee or Person, or any other Person who provided services to the Company or any of their respective affiliates during the six months prior to such hiring, employment, engagement or contracting, to terminateperform services other than for the benefit of the Company, cease any Other Employing Entity or lessen any of their respective affiliates or subsidiaries, in each case other than in the fulfillment of the Executive’s duties as CFO of the Company;
(iii) while an employee of the Company and during the period ending on the 12-month anniversary of the Executive’s date of termination of employment, solicit, entice, encourage, influence, accept payment from, or provide services to, or attempt to solicit, entice, encourage, influence or accept payment from, or assist any other Person, firm or corporation, directly or indirectly, in the solicitation of or providing services to, any Client (as defined below) or any Prospective Client (as defined below), or to alter, reduce or terminate its business relationship with the Company or any of their respective affiliates for the direct or indirect benefit of any competitor of the Company, any Other Employing Entity or any of their respective affiliates or subsidiaries, in each case other than in the fulfillment of the Executive’s duties as CFO of the Company;
(iv) For purposes of this Agreement, “Client” means a Person to whom the Company, its Subsidiariessubsidiaries or affiliates sold goods or provided services, and with whom the Executive had contacts, dealings or client relationship responsibilities (Beither directly or indirectly through supervising other employees who had such responsibilities or otherwise in the course of performing the duties and responsibilities associated with his position) on behalf of a Competing Businessthe Company, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant of the Company Other Employing Entity or any of its Subsidiaries their respective affiliates or any person who was an employeesubsidiaries, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if while the Executive is employed by the Company for less than twelve (12the “Look Back Period”) months, those persons who were employees, contractors, or consultants of (but if the Executive is not employed by the Company or at the time of any of its Subsidiaries during activity described in Sections 7(a)(iii) and 7(a)(iv), then the Look Back Period will not be longer than one year prior to the Executive’s employment with the Companylast day of employment).
(b) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
“Prospective Client” shall mean those Persons (cA) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled is actively soliciting or is planning to solicit; or (B) with whom the Executive has met or with respect to which the Executive has obtained Confidential Information in the course of or as a matter result of right to specific his performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other his duties owed by the Executive to the Company. “Person” means any individual, includingcorporation, without limitationpartnership, fiduciary duties of loyalty and disclosurelimited liability company, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Companyfirm, joint venture, association, joint-stock company, trust, unincorporated organization, governmental or regulatory body or other entity.
Appears in 1 contract
Noncompetition and Nonsolicitation. Since the Consultant has obtained in the course of his employment with the Company, and is likely to obtain in the course of his service as a consultant hereunder, knowledge of trade names, trade secrets, know-how, products and services (a) In consideration of the benefits to which the Executive may be entitled including products and services under the terms of this Agreementdevelopment), the techniques, methods, lists, computer programs and software and other confidential information relating to the Company and its business previously provided to the ExecutiveAffiliates, and their employees, clients, business or business opportunities, the Company’s promise to provide the Executive with future confidential information Consultant hereby undertakes that, during the course period beginning on the date hereof and ending on December 31, 2014:
(a) the Consultant will not (either alone or jointly with or on behalf of the Executive’s others and whether directly or indirectly) encourage, entice, solicit or endeavor to encourage, entice or solicit away from employment with the Company (including new confidential information provided or its Affiliates, or hire or cause to be hired, any employee of the Executive in connection withCompany or its Affiliates, or encourage, entice, solicit or endeavor to encourage, entice or solicit any such officer or employee to violate the terms of any employment agreement or arrangement between such individual and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, Affiliates;
(b) the Consultant will not (either alone or jointly with or on behalf of others and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not, whether directly or indirectly:
(i) carry on interfere with or engage in Competitive Duties (as a director, employee, consultant, contractor disrupt or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit (seek to interfere with or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) disrupt (A) encourage (the relationships between the Company and its Affiliates, on the one hand, and any customer or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor client of the Company and its Affiliates, on the other hand, (including any insured or any reinsured party) who during the period of its Subsidiaries, to terminate, cease twenty-four months immediately preceding the date of this Agreement shall have been such a customer or lessen its relationship with the Company or any of its Subsidiariesclient, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant of the Company or any of its Subsidiaries or any person who was an employee, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractors, or consultants of the Company or any of its Subsidiaries during the Executive’s employment with the Company).
(b) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm supply to the Company and its Subsidiaries Affiliates of any services by any supplier or agent or broker who during the period of twenty-four months immediately preceding the date of this Agreement shall have supplied services to any such person, nor will the Consultant interfere or seek to interfere with the terms on which such supply or agency or brokering services during such period as aforesaid have been made or provided; and
(c) the Consultant will not (either alone or jointly with or on behalf of others and whether directly or indirectly) whether as an employee, consultant, partner, principal, agent, distributor, representative or stockholder (except solely as a less than one percent stockholder of a publicly traded company), engage in any activities in Bermuda, the United States or greater London if such activities are competitive with the businesses that monetary damages would not be sufficient remedy for (i) are then being conducted by the Company or its Affiliates and (ii) during the period of the Consultant’s employment or consultancy were either being conducted by the Company or its Affiliates or actively being developed by the Company or its Affiliates. For purposes of this Agreement, an “Affiliate” of the Company includes any breach of these sectionsperson, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with the Company, and such term shall specifically include, without limitation, the Company’s majority-owned subsidiaries. The Executive agrees limitations on the Consultant set forth in this Section 7 shall also apply to any agent or other representative acting on behalf of the Consultant. While the restrictions aforesaid are considered by both parties to be reasonable in all the circumstances it is recognized that restrictions of the nature in question may fail for reasons unforeseen and accordingly it is hereby declared and agreed that if any of such restrictions or the geographic, duration or other scope thereof shall be adjudged to be void as going beyond what is reasonable in the circumstances for the protection of the interests of the Company and its Subsidiaries shall Affiliates but would be entitled as a matter of right to specific performance valid if part of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, wording thereof were deleted and/or the periods (if any) thereof reduced and/or geographic or other appropriate judicial remedy, writ or order, area dealt with thereby reduced in any court of competent jurisdiction, restraining any violation or further violation of scope then said restrictions shall apply with such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm modifications as may be necessary to make them valid and without any showing that the Company or its Subsidiaries do not have an adequate remedy at laweffective.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Noncompetition and Nonsolicitation. (a) In consideration of the benefits to which set forth herein in paragraphs 2 and 4, the Executive may be entitled under agrees that for a period of one year following the terms earlier of this Agreement, (a) the confidential information relating to the Company and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course termination of the Executive’s employment with the Company (including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged Bank for any reason whatsoever except if terminated by the Company Bank without cause or any of its affiliates, and thereafter for a period of twelve (12b) months immediately following the termination of the Executive’s employment for whatever reasonwith the Bank within one (1) year following a Change in Control, the Executive will notnot enter the employ of, or have any interest in, directly or indirectly:
indirectly (i) carry on or engage in Competitive Duties (either as a executive, director, employeeofficer, consultant, contractor agent or otherwiseemployee) of any other bank or financial institution or any entity which either accepts deposits or makes loans (whether presently existing or subsequently established) and which has an office located within Orange, Lake and Seminole Counties in Florida. In addition, during such one-year period, the Restricted Area for any Competing Business;
Executive agrees that the Executive will not (iia) solicit (for employment by the Executive or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducinganyone else, or attempting to induceemploy, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor employee of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with the Company or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant of the Company or any of its Subsidiaries Bank or any person who was an employee, contractoremployee of the Bank within 12 months prior to such solicitation of employment; (b) induce, or consultant attempt to induce, any employee in the Bank to terminate such employee’s employment with the Bank; (c) induce, or attempt to induce, anyone having a business relationship with the Bank to terminate or curtail such relationship or, on behalf of himself or anyone else, to compete with the Bank; or (d) permit anyone controlled by the Executive, or any person acting on behalf of the Company Executive or any controlled by an employee of its Subsidiaries at the Executive, to do any time during of the last twelve (12) months foregoing. The Executive’s employment shall be deemed to have been terminated for cause if as a result of the Executive’s employment (i) failure to comply with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractors, or consultants policies of the Company or any of its Subsidiaries during the Executive’s employment with the Company).
(b) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as Bank established from time to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and ; (ii) shall not apply engaging in those portions conduct involving fraud, deceit, personal dishonesty, breach of fiduciary or any other conduct which in any such case may adversely affect the business or reputation of the Restricted Area located within Bank; (iii) knowingly violating any banking law or regulation; (iv) becoming subject to continuing intemperance in the State use of Oklahoma. Insteadalcohol or drugs which has adversely affected, or may adversely affect, the Executive agrees thatbusiness or reputation of the Bank, in addition or being convicted of a crime involving moral turpitude; (v) filing, or having filed against the Executive, any petition under the Federal bankruptcy laws of any state insolvency laws, or (vi) the Employee’s gross negligence or the willful and continued failure to perform his/her material duties with respect to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment Employer or other engagement by the Company or any of its affiliates, and thereafter which continues beyond ten (10) business days after a written demand for a period of twelve (12substantial performance specifying such failure(s) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services is received by Employee from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliatesEmployer.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Noncompetition and Nonsolicitation. The Officer agrees that during the Employment Period and for a one-year period following the termination of his employment for any reason during the Employment Period (athe “Noncompete Period”), the Officer will not directly or indirectly, as a principal, agent, employee, employer, investor, co-partner or in any other individual or representative capacity whatsoever: (i) In consideration engage in a Competitive Business anywhere in the Market Area (as such terms are defined below) in any capacity that includes any of the benefits to which significant responsibilities held or significant activities engaged in by the Executive may be entitled under the terms Officer on behalf of this Agreement, the confidential information relating to the Company and any of its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information Affiliates during the course Employment Period; (ii) solicit, induce, or attempt to solicit or induce any customer or client of the Executive’s Company or its Affiliates with whom the Officer had direct contact or whose identity the Officer learned as a result of his employment with the Company (including new confidential information provided to terminate, diminish, or materially alter in a manner harmful to the Executive Company the relationship of such customer or client with the Company or its Affiliates; (iii) solicit, induce, encourage, or participate in connection withsoliciting, and as a result ofinducing, or encouraging any employee to terminate his or her employment with the Merger)Company or any of its Affiliates; or (iv) hire, and so as employ, or engage in business with or attempt to protect such confidential information and the Company’s legitimate hire, employ, or engage in business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while any person employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following Affiliates or who has left the termination of the Executive’s employment for whatever reason, the Executive will not, directly or indirectly:
(i) carry on or engage in Competitive Duties (as a director, employee, consultant, contractor or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor of the Company or any of its SubsidiariesAffiliates within the preceding three months, to terminateprovided, cease or lessen its relationship with however, that the Officer may become employed, within the twelve month period following a termination without cause by the Company or the Officer’s termination of employment with Good Reason, by a financial institution with less than $500 million in assets, so long as such financial institution is not affiliated with any of its Subsidiariesother company such that their total aggregate assets exceed $500 million, or (B) on behalf of and such new employment shall not be construed as a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant violation of the Company or any of its Subsidiaries or any person who was an employeeforegoing covenant not to compete, contractorand, or consultant of in which case, the Company or any agrees that if the salary to be paid Officer by his new employer is less than 75% of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with his base salary in effect upon such a termination, then the Company (or, if will pay the Executive is employed by Officer the Company for less than twelve (12) months, those persons who were employees, contractors, or consultants of difference between his base salary in effect upon such a termination and the Company or any of its Subsidiaries during the Executive’s employment with the Company).
(b) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity base salary to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) paid by his new employer. Notwithstanding the foregoing, the above-referenced limitations Officer may purchase or otherwise acquire up to (but not more than) 1% of any class of securities of any business enterprise (but without otherwise participating in Sections 6(a)(ithe activities of such enterprise) that engages in a Competitive Business in the Market Area and (ii) shall not apply in those portions whose securities are listed on any national or regional securities exchange or have been registered under Section 12 of the Restricted Area located within the State Securities Exchange Act of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliates1934.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Noncompetition and Nonsolicitation. (a) In consideration of the benefits to which the Executive may be entitled under the terms of this Agreement, the confidential information relating to the Company and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s During his employment with the Company (including new confidential information provided to the Company, Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will shall not, directly or indirectly:
(i) carry on , render services of a business, professional or commercial nature to any other person or entity that competes with the Company's business, whether for compensation or otherwise, or engage in Competitive Duties (any business activities competitive with the Company's business, whether alone, as an employee, as a directorpartner, employeeor as a shareholder (other than as the holder of not more than one percent of the combined voting power of the outstanding stock of a public company), consultantofficer or director of any corporation or other business entity, contractor or otherwise) within as a trustee, fiduciary or in any other similar representative capacity of any other entity. Notwithstanding the Restricted Area for any Competing Businessforegoing, the expenditure of reasonable amounts of time as a member of other companies' Board of Directors shall not be deemed a breach of this if those activities do not materially interfere with the services required under this Agreement;
(iib) solicit For a period of one (or assist another in soliciting1) any Covered Customer or Prospective Customer for year after the purpose termination of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with the Company or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant of the Company or any of its Subsidiaries or any person who was an employee, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s 's employment with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractorsany reason, or consultants for a period of two (2) years following Executive's voluntary resignation without Good Reason, Executive will not directly or indirectly, absent the Company Company's prior written approval, render services of a business, professional or commercial nature to any of its Subsidiaries during the Executive’s employment other person or entity that competes with the Company).
's business (b"Company" as used herein shall be deemed to include the Company and any parent, subsidiary or affiliate corporations) The Executive agrees that in the geographical area in which the Company does business, whether for compensation or otherwise, or engage in any business activities competitive with the Company’s and its Subsidiaries’ substantial investments in its business interests's business, goodwill and confidential information are worthy whether alone, as an employee, as a partner, or as a shareholder (other than as the holder of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater not more than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests one percent of the Companycombined voting power of the outstanding stock of a public company), officer or director of any corporation or other business entity, or as a trustee, fiduciary or in any other similar representative capacity.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for For a period of twelve one (121) months immediately following the year after termination of the Executive’s 's employment for whatever any reason, the Executive will not directly recruit solicit the sale of goods, servicesor induce, or a combination of goods and services from the established customers attempt to induce, any employee or employees of the CompanyCompany to terminate their employment with, or otherwise cease their relationship with, the Company’s subsidiaries or the Company’s affiliates.; or
(d) Although For a period of one (1) year after termination of Executive's employment for any reason, Executive will not solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company and the which were contacted, solicited or served by Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements while employed by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Samples: Employment Agreement (Acies Corp)
Noncompetition and Nonsolicitation. For a period from the date of this Agreement through the termination of my Employment with Employer and for a period from the termination of my Employment with Employer through the last day of the month in which I cease receiving cash severance benefits based on the amount of my base salary prior to termination of my Employment with Employer, I hereby agree that, regardless of the reason for termination, without obtaining the prior written consent of Employer, I will not, nor will any of my affiliates or representatives, (a) In consideration on my own behalf, on behalf of any other party, circumvent, interfere with, or assist any other party in circumventing, or interfering with the business of the benefits Company; (b) own, manage, operate, finance, conduct business, engage, directly or indirectly, alone or as greater than a 2% shareholder, partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated with, any other business that is competitive with the business of the Company; (c) solicit, attempt to solicit business, do business with, accept or divert business from or otherwise interfere with the Company’s relationship with any person (i) which, during the time of my employment with Employer was an investor, lender, client, customer or had a business relationship with the Company or (ii) to which the Executive may be entitled under Company had made a proposal or presentation within the terms nine-month period prior to my termination of this Agreementemployment; and (d) employ or solicit for employment any employee of the Company, the confidential information relating to induce any employee of the Company and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executiveterminate such employee’s employment with the Company (including new confidential information provided or offer employment to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by anyone the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not, directly or indirectly:
(i) carry on or engage in Competitive Duties (as a director, employee, consultant, contractor or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducinghires, or attempting to inducehire any person whom I know the Company has offered employment. Notwithstanding the foregoing sentence, such Covered Customer or Prospective Customer to cease or reduce its Employer expressly acknowledges that I may accept employment with a large multi-unit employer that possesses a unit that engages in business that is competitive with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with the Company or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant of the Company or any of its Subsidiaries or any person who was an employee, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractors, or consultants of the Company or any of its Subsidiaries during the Executive’s employment with the Company).
(b) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing; provided, that I do not work in or with, or give advice to, the above-referenced limitations unit engaged in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within business that is competitive with the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers business of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although and provided further that I notify the Company and in writing no later than the Executive believe third day after I accept an offer of employment from the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation non-competing unit of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at lawa multi-unit employer.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Noncompetition and Nonsolicitation. (a) In consideration of the benefits to which the Executive may be entitled under the terms of this Agreement, the confidential information relating to the Company and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s employment with the Company (including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the The Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will shall not, directly or indirectly, whether by the Executive, through an affiliate or in partnership or conjunction with, or as an employee, officer, director, manager, member, owner, consultant or agent of, any other Person:
(i) carry while an employee of the Company and during the period ending on the 12-month anniversary of the Executive’s date of termination of employment, engage, directly or engage indirectly, in Competitive Duties activities or businesses (as a directorincluding, employeewithout limitation, consultantby owning any interest in, contractor managing, controlling, participating in, consulting with, advising, rendering services for, or otherwisein any manner engaging in the business of owning, operating or managing any business) within the Restricted Area for United States (including its territories or possessions), and/or other territories (in which the Company, its affiliates or subsidiaries conduct business or are actively planning to conduct business as of the Executive’s date of termination of employment) that competes or will compete in the United States and/or such other territories with the Company, its subsidiaries or affiliates (“Competitive Activities”) or any Competing Businessbusiness that acquires all or substantially all of the assets of, or is otherwise a successor to, the Company (an “Other Employing Entity”);
(ii) solicit (while an employee of the Company and during the period ending on the 12-month anniversary of the Executive’s date of termination of employment, solicit, entice, encourage or assist another in soliciting) intentionally influence, or attempt to solicit, entice, encourage or influence, any Covered Customer employee of, or Prospective Customer other Person who performs services for the purpose Company, any Other Employing Entity or any of inducing, their respective affiliates or attempting subsidiaries to induce, such Covered Customer resign or Prospective Customer to cease leave the employ or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor engagement of the Company or any of its Subsidiariestheir respective affiliates or otherwise hire, employ, engage or contract any such employee or Person, or any other Person who provided services to the Company or any of their respective affiliates during the six (6) months prior to such hiring, employment, engagement or contracting, to terminateperform services other than for the benefit of the Company, cease any Other Employing Entity or lessen any of their respective affiliates or subsidiaries, in each case other than in the fulfillment of the Executive’s duties as CFO of the Company;
(iii) while an employee of the Company and during the period ending on the twelve 12-month anniversary of the Executive’s date of termination of employment, solicit, entice, encourage, influence, accept payment from, or provide services to, or attempt to solicit, entice, encourage, influence or accept payment from, or assist any other Person, firm or corporation, directly or indirectly, in the solicitation of or providing services to, any Client (as defined below) or any Prospective Client (as defined below), or to alter, reduce or terminate its business relationship with the Company or any of their respective affiliates for the direct or indirect benefit of any competitor of the Company, any Other Employing Entity or any of their respective affiliates or subsidiaries, in each case other than in the fulfillment of the Executive’s duties as CFO of the Company;
(iv) For purposes of this Agreement, “Client” means a Person to whom the Company, its Subsidiariessubsidiaries or affiliates sold goods or provided services, and with whom the Executive had contacts, dealings or client relationship responsibilities (Beither directly or indirectly through supervising other employees who had such responsibilities or otherwise in the course of performing the duties and responsibilities associated with his position) on behalf of a Competing Businessthe Company, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant of the Company Other Employing Entity or any of its Subsidiaries their respective affiliates or any person who was an employeesubsidiaries, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if while the Executive is employed by the Company for less than twelve (12the “Look Back Period”) months, those persons who were employees, contractors, or consultants of (but if the Executive is not employed by the Company or at the time of any of its Subsidiaries during activity described in Sections 7(a)(iii) and 7(a)(iv), then the Look Back Period will not be longer than one (1) year prior to the Executive’s employment with the Companylast day of employment).
(b) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
“Prospective Client” shall mean those Persons (cA) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled is actively soliciting or is planning to solicit; or (B) with whom the Executive has met or with respect to which the Executive has obtained Confidential Information in the course of or as a matter result of right to specific his performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other his duties owed by the Executive to the Company. “Person” means any individual, includingcorporation, without limitationpartnership, fiduciary duties of loyalty and disclosurelimited liability company, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Companyfirm, joint venture, association, joint-stock company, trust, unincorporated organization, governmental or regulatory body or other entity.
Appears in 1 contract
Noncompetition and Nonsolicitation. (a) In consideration For purposes of the benefits to which the Executive may be entitled under the terms Sections 5, 6, 7, 8, 9, 10 and 11 of this Agreement, the confidential information relating references to the Company shall include its subsidiaries and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s employment with the Company Affiliates.
(including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the a) Executive agrees that Executive shall not, while employed or otherwise engaged by an employee of the Company or any of its affiliates, and thereafter for a during the eighteen (18) month period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason(such collective duration, the Executive will not"Restriction Period"), directly or indirectly, without the prior written consent of the Company:
(i) carry on or engage in Competitive Duties (as a director, employee, consultant, contractor or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage engage in activities or businesses (or assist another in encouraging) including without limitation by owning any employeeinterest in, contractormanaging, consultantcontrolling, supplierparticipating in, consulting with, advising, rendering services for, or vendor in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses of the Company or any of its Subsidiaries, to terminate, cease subsidiaries or lessen its relationship with controlled affiliates or any entity owned by the Company or any of its Subsidiaries, ("Competitive Activities" ) or (B) on behalf of a Competing Business, engage, employassisting any Person in any way to do, or solicit attempt to do, anything prohibited by this Section 5(a)(i)(A) above; or
(ii) perform any action, activity or contact for employment course of conduct which is substantially detrimental to the businesses or engagement business reputations of the Company and involves (A) soliciting, recruiting or hiring (or assist another in such activityattempting to solicit, recruit or hire) any employee, contractor or consultant employees of the Company or any of its Subsidiaries or any person Persons who was an employee, contractor, or consultant of have worked for the Company or any of its Subsidiaries at any time during the last twelve (12) months month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Executive’s Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company (or, if the Executive with any Person who or which is employed by the Company for less than twelve (12) months, those persons who were employees, contractorsor otherwise engaged to perform services for, or consultants any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 5(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Executive is in violation of the Company or any provisions of its Subsidiaries during the Executive’s employment with the Company)this Section 5(a) unless provided below.
(b) The provisions of Section 5(a) shall not be deemed breached as a result of Executive's passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Executive agrees does not actively participate in the business of such Person; provided, however, that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need such stock is listed on a national securities exchange (for the protection afforded sake of clarity, Executive shall remain bound by the other restrictive covenants in this agreement, including but not limited to Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Companyhereof).
(c) Notwithstanding Without limiting the foregoinggenerality of Section 11, notwithstanding the fact that any provision of this Section 5 is determined not to be specifically enforceable, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions Company may nevertheless be entitled to recover monetary damages as a result of the Restricted Area located within the State Executive's material breach of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliatessuch provision.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Executive acknowledges that Executive is being provided with significant additional consideration (to which Executive is not otherwise entitled), including stock options and restricted stock, to induce Executive to enter into this Agreement. Executive expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Executive further acknowledges that although Executive’s violation or threatened or attempted violation of 's compliance with the covenants contained in this Section 6 will cause irreparable harm Sections 5, 6, 7, 8 and 9 may prevent Executive from earning a livelihood in a business similar to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach business of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty Executive's experience and disclosure, which Executive acknowledges and agrees capabilities are attendant to the executive and managerial positions such that the Executive has held other opportunities to earn a livelihood and will hold with the Companyadequate means of support for Executive and Executive's dependents.
Appears in 1 contract
Samples: Employment Agreement (Infrastructure & Energy Alternatives, Inc.)
Noncompetition and Nonsolicitation. (a) In consideration of the benefits to which the Executive may be entitled under the terms of this Agreement, the confidential information relating to the Company and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s employment with the Company (including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed during ---------------------------------- the Term (as defined in Section 2 below) of this Agreement (and in the case of termination pursuant to Section 5 below for a period of one year thereafter), Executive will neither directly nor indirectly engage in a business competing with any of the businesses conducted by the Company or any of its subsidiaries or affiliates as of the date of such termination, nor without the prior written consent of the Company directly or indirectly have any interest in, own, manage, operate, control, be connected with as a stockholder, joint venturer, officer, employee, partner or consultant, or otherwise engaged engage, invest or participate in any business that is competitive with any of the businesses conducted by the Company or by any subsidiary or affiliate of the Company; provided, however, that nothing contained in this section 1.3 shall prevent Executive from investing or trading in stocks, bonds, commodities, securities, real estate or other forms of investment for Executive's own account and benefit (directly or indirectly), up to a maximum of 5% of the total equity or voting power of such entity, so long as such investment activities do not significantly interfere with Executive's services to be rendered hereunder and are consistent with the conflict of interest policies maintained by the Company from time to time. Executive further agrees that (i) during the Term of this Agreement and for a period of one year thereafter Executive will not on his own behalf or on behalf of any person or entity, directly or indirectly, hire or solicit the employment of any employee who is employed by the Company or any of its affiliates, subsidiaries or divisions as of the date of such termination and thereafter (ii) for a period of twelve (12) months immediately following one year after the termination Term of the Executive’s employment for whatever reasonthis Agreement, the Executive will not, directly or indirectly:
(i) carry on or engage in Competitive Duties (as a director, employee, consultant, contractor or otherwise) within the Restricted Area for have any Competing Business;
(ii) solicit (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with the Company or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit related dealings or contact for employment with any clients, suppliers, distributors or engagement (or assist another in such activity) any employee, contractor or consultant vendors of the Company or any of its Subsidiaries or any person who was an employee, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractors, or consultants of the Company or any of its Subsidiaries during the Executive’s employment with the Company).
(b) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter subsidiaries or divisions for a period or on behalf of twelve (12) months immediately following the termination any business that is competitive with any of the Executive’s employment for whatever reason, businesses conducted by the Executive will not directly solicit the sale of goods, services, Company or a combination of goods and services from the established customers by any subsidiary or affiliate of the Company, Company at the Company’s subsidiaries conclusion of the Term or which adversely effects the Company’s affiliates.
(d) Although relationship between the Company and the Executive believe the limitations as to timeany such client, geographic areasupplier, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceabledistributor or vendor.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Noncompetition and Nonsolicitation. (a) In consideration of the benefits to which the Executive may be entitled under the terms of this Agreement, the confidential information relating to the Company and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s employment with the Company (including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will shall not, directly or indirectly, whether by Executive, through an Affiliate or in partnership or conjunction with, or as an employee, officer, director, manager, member, owner, consultant or agent of, any other Person:
(i) carry while an employee of the Company and during the period ending on the six (6) month anniversary of Executive’s date of termination of employment, engage, directly or engage indirectly, in Competitive Duties activities or businesses (as a directorincluding without limitation by owning any interest in, employeemanaging, consultantcontrolling, contractor participating in, consulting with, advising, rendering services for, or otherwisein any manner engaging in the business of owning, operating or managing any business) within the Restricted Area for United States (including its territories or possessions), and/or other territories (in which the Company, its Affiliates or Subsidiaries conduct business or are actively planning to conduct business as of Executive’s date of termination of employment) that competes or will compete in the United States and/or such other territories with the Company, its Subsidiaries or Affiliates (“Competitive Activities”) or any Competing Businessbusiness that acquires all or substantially all of the assets of, or is otherwise a successor to, the Company (an “Other Employing Entity”);
(ii) solicit while an employee of the Company and during the period ending on the eighteen (18) month anniversary of Executive’s date of termination of employment, solicit, entice, encourage or assist another in soliciting) intentionally influence, or attempt to solicit, entice, encourage or influence, any Covered Customer employee of, or Prospective Customer other Person who performs services for the purpose Company, any Other Employing Entity or any of inducing, their respective Affiliates or attempting Subsidiaries to induce, such Covered Customer resign or Prospective Customer to cease leave the employ or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor engagement of the Company or any of its their respective Affiliates or otherwise hire, employ, engage or contract any such employee or Person, or any other Person who provided services to the Company or any of their respective Affiliates during the six (6) months prior to such hiring, employment, engagement or contracting, to perform services other than for the benefit of the Company, any Other Employing Entity or any of their respective Affiliates or Subsidiaries, in each case other than in the fulfillment of Executive’s duties as Executive Vice President and Chief Financial Officer of the Company;
(iii) while an employee of the Company and during the period ending on the eighteen (18) month anniversary of Executive’s date of termination of employment, solicit, entice, encourage, influence, accept payment from, or provide services to, or attempt to terminatesolicit, cease entice, encourage, influence or lessen accept payment from, or assist any other Person, firm or corporation, directly or indirectly, in the solicitation of or providing services to, any Client (as defined below) or any Prospective Client (as defined below), or to alter, reduce or terminate its business relationship with the Company or any of its their respective Affiliates for the direct or indirect benefit of any competitor of the Company, any Other Employing Entity or any of their respective Affiliates or Subsidiaries, in each case other than in the fulfillment of Executive’s duties as Executive Vice President and Chief Financial Officer of the Company;
(iv) while an employee of the Company and during the period ending on the eighteen (18) month anniversary of Executive’s date of termination of employment, directly or indirectly request or advise any Client or Prospective Client to alter, reduce, terminate, withdraw, curtail, or cancel the Client’s or Prospective Client’s business with the Company, any Other Employing Entity or any of their respective Affiliates or Subsidiaries, in each case other than in the fulfillment of Executive’s duties as Executive Vice President and Chief Financial Officer of the Company; or
(Bv) while an employee of the Company and during the period ending on the eighteen (18) month anniversary of Executive’s date of termination of employment, solicit any agents, advisors, independent contractors or consultants of the Company, any Other Employing Entity or any of their respective Affiliates or Subsidiaries who are under contract or doing business with the Company, any Other Employing Entity or any of their respective Affiliates or Subsidiaries to terminate, reduce or divert business with or from the Company, any Other Employing Entity or any of their respective Affiliates or Subsidiaries, in each case other than in the fulfillment of Executive’s duties as Executive Vice President and Chief Financial Officer of the Company.
(vi) For purposes of this Agreement, “Client” means a Person to whom the Company, its Subsidiaries or Affiliates sold goods or provided services, and with whom Executive had contacts, dealings or client relationship responsibilities (either directly or indirectly through supervising other employees who had such responsibilities or otherwise in the course of performing the duties and responsibilities associated with his position) on behalf of a Competing Businessthe Company, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant of the Company Other Employing Entity or any of its Subsidiaries their respective Affiliates or any person who was an employeeSubsidiaries, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the while Executive is employed by the Company for less than twelve (12the “Look Back Period”) months, those persons who were employees, contractors, or consultants of (but if Executive is not employed by the Company or at the time of any of its Subsidiaries during activity described in Section 7(a)(iii) and 7(a)(iv), then the Look Back Period will not be longer than one (1) year prior to Executive’s employment with the Company).
last day of employment, and “Prospective Client” shall mean those Persons (bA) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments Company is actively soliciting or is planning to solicit; or (B) with whom Executive has met or with respect to which Executive has obtained Confidential Information in its business interests, goodwill and confidential information are worthy the course of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations or as a result of his performance of his duties to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Noncompetition and Nonsolicitation. (a) In consideration Without the prior written consent of the benefits Board, during the period that the Executive is employed by Employer and, in the event the Executive terminates his employment with the Employer for any reason other than as a result of a material breach by the Employer of any of the Employer’s obligations under this Agreement, or any other agreement to which the Executive may be entitled under the terms of this Agreement, the confidential information relating to the Company and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s employment with the Company Employer are now or hereafter parties, for six (including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve (126) months immediately following the termination of the Executive’s employment for whatever reasonthereafter, the Executive will not, directly or indirectly:
(i) carry on or engage in Competitive Duties (, whether as a directorowner, partner, shareholder, consultant, agent, employee, consultant, contractor co-venturer or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with the Company or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employparticipate, assist or solicit or contact for employment or engagement invest in any Competing Business (or assist another in such activity) any employee, contractor or consultant as hereinafter defined). Without the prior written consent of the Company or any of its Subsidiaries or any person who was an employeeBoard, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if period that the Executive is employed by the Company for less than twelve Employer and, (12x) months, those persons who were employees, contractors, or consultants in the event of the Company or any of its Subsidiaries during the Executive’s employment with the Company).
(b) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment by the Employer with Cause or (y) in the event the Executive terminates his employment with the Employer for whatever reasonany reason other than for Good Reason or as a result of a material breach by the Employer of any of the Employer’s obligations under this Agreement, or any other agreement to which the Executive and the Employer are now or hereafter parties, for twelve (12) months thereafter, the Executive will not refrain from directly solicit or indirectly employing, attempting to employ, recruiting or otherwise soliciting, inducing or influencing any person to leave employment with the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic areaEmployer, and scope of activity contained also will refrain from soliciting or encouraging any customer or supplier to terminate or otherwise modify adversely its business relationship with the Employer. The Executive understands that the restrictions set forth in this Section 6 7(d) are intended to protect the Employer’s interest in their Confidential Information and established employee, customer and supplier relationships and goodwill, and agrees that such restrictions are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if appropriate for this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation purpose. For purposes of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry the term “Competing Business” shall mean any business that provides or intends to provide the same or similar services as those provided by the Employer or any of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, its subsidiaries in any court geographic area then served by Employer (which for this purpose only shall be defined as being within 100 miles of competent jurisdiction, restraining any violation office or further violation of such agreements data center currently used or operated by the Executive Employer or others active on any subsidiary of the Executive’s behalfEmployer) and/or the Employer or any of their subsidiaries. Notwithstanding the foregoing, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition may own up to all other duties owed by two percent (2%) of the Executive to the Company, including, without limitation, fiduciary duties outstanding stock of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has a publicly-held and will hold with the Companycorporation.
Appears in 1 contract
Noncompetition and Nonsolicitation. (a) In consideration For purposes of the benefits to which the Executive may be entitled under the terms Sections 5, 6, 7, 8, 9, 10 and 11 of this Agreement, the confidential information relating references to the Company shall include its subsidiaries and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s employment with the Company Affiliates.
(including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the a) Executive agrees that Executive shall not, while employed or otherwise engaged by an employee of the Company or any of its affiliates, and thereafter for a period of during the twelve (12) months immediately month period following the termination of the Executive’s employment for whatever reason(such collective duration, the Executive will not“Restriction Period”), directly or indirectly, without the prior written consent of the Company:
(iA) carry on or engage in Competitive Duties activities or businesses (as a directorincluding without limitation by owning any interest in, employeemanaging, consultantcontrolling, contractor or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducingparticipating in, consulting with, advising, rendering services for, or attempting to inducein any manner engaging in the business of owning, such Covered Customer operating or Prospective Customer to cease managing any business) anywhere in the United States or reduce its business with other countries outside the United States in which the Company does business, that are principally or its Subsidiaries, primarily engaged in any business or not to do business activity that competes with any of the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor businesses of the Company or any of its Subsidiaries, to terminate, cease subsidiaries or lessen its relationship with controlled affiliates or any entity owned by the Company or any of its Subsidiaries, (“Competitive Activities”) or (B) on behalf of a Competing Business, engage, employassist any Person in any way to do, or solicit attempt to do, anything prohibited by this Section 6(a)(i)(A) above; or
ii. perform any action, activity or contact for employment course of conduct that is substantially detrimental to the businesses or engagement business reputations of the Company and involves (A) soliciting, recruiting or hiring (or assist another in such activityattempting to solicit, recruit or hire) any employee, contractor or consultant employees of the Company or any of its Subsidiaries or any person Persons who was an employee, contractor, or consultant of have worked for the Company or any of its Subsidiaries at any time during the last twelve (12) months month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Executive’s Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company (or, if the Executive with any Person who or which is employed by the Company for less than twelve (12) months, those persons who were employees, contractorsor otherwise engaged to perform services for, or consultants any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 6(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Executive is in violation of the Company or any provisions of its Subsidiaries during the Executive’s employment with the Company)this Section 6(a) unless provided below.
(b) The provisions of Section 6(a) shall not be deemed breached as a result of Executive’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Executive agrees does not actively participate in the business of such Person; provided, however, that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need such stock is listed on a national securities exchange (for the protection afforded sake of clarity, Executive shall remain bound by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained other restrictive covenants in this Agreement are reasonable and are agreement, including but not greater than necessary limited to protect the confidential information, good-will and other legitimate business interests of the CompanySection 7 hereof).
(c) Notwithstanding the foregoingfact that any provision of this Section 6 is determined not to be specifically enforceable, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions Company may nevertheless be entitled to recover monetary damages as a result of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions material breach of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliatessuch provision.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Executive acknowledges that Executive is being provided with significant additional consideration (to which Executive is not otherwise entitled), including equity awards, to induce Executive to enter into this Agreement. Executive expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Executive further acknowledges that although Executive’s violation or threatened or attempted violation of compliance with the covenants contained in this Section 6 will cause irreparable harm Sections 6, 7, 8 and 9 may prevent Executive from earning a livelihood in a business similar to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach business of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty Executive’s experience and disclosure, which Executive acknowledges and agrees capabilities are attendant to the executive and managerial positions such that the Executive has held other opportunities to earn a livelihood and will hold with the Companyadequate means of support for Executive and Executive’s dependents.
Appears in 1 contract
Samples: Employment Agreement (Infrastructure & Energy Alternatives, Inc.)
Noncompetition and Nonsolicitation. (a) In consideration Executive agrees that Executive shall not, while an employee of the benefits to which the Executive may be entitled under the terms of this Agreement, the confidential information relating to the Company and its business previously provided to during the Executiveone-year period following termination of employment (such one-year period, and the “Restriction Period”), directly or indirectly, without the prior written consent of the Company:
(i) engage in activities or businesses within the United States on behalf of any Person that is in competition with a portion of the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s employment with business from which the Company (including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and derives at least 15% of its revenues based on the Company’s legitimate business interests fiscal prior to the earlier of the activity or termination (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment“Competitive Activities”), including (A) selling goods or services of the Executive agrees that while employed or otherwise engaged type sold by the Company or any of its affiliates, and thereafter for a period of twelve subsidiaries; (12B) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not, directly or indirectly:
(i) carry on or engage in Competitive Duties (as a director, employee, consultant, contractor or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, soliciting or attempting to induce, such Covered Customer solicit any customer or Prospective Customer to cease client or reduce its business with the Company prospective customer or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor client of the Company or any of its Subsidiariessubsidiaries or Limited Affiliates including, without limitation, actively sought prospective customers or clients, to terminate, cease purchase any goods or lessen its relationship with services of the specific type sold by the Company or any of its Subsidiariessubsidiaries from anyone other than the Company or any of its subsidiaries; and (C) assisting any Person in any way to do, or attempt to do, anything prohibited by (A) or (B) on behalf above; provided, however, that the foregoing shall not prevent or be violated by Executive’s service in a non-competitive portion of a Competing Businesscompany or business enterprise which is engaged in Competitive Activities with the Company or, engageas a result thereof, employ, or solicit or contact for employment or engagement (or assist another owning compensatory equity in such activitya company or business enterprise engaged in Competitive Activities; or (A) solicit, recruit or hire any employee, contractor or consultant employees of the Company or any of its Subsidiaries subsidiaries or Limited Affiliates or Persons who have worked for the Company or any person who was an employee, contractor, of its subsidiaries or consultant Limited Affiliates in the prior 6 months; (B) solicit or encourage any employee of the Company or any of its Subsidiaries at any time during subsidiaries or Limited Affiliates to leave the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractors, or consultants of the Company or any of its Subsidiaries during the Executive’s employment subsidiaries or Limited Affiliates; or (C) intentionally interfere with the Company).
(b) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy relationship of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter subsidiaries or Limited Affiliates with any Person who or which is employed by or otherwise engaged to perform services for a period the Company or any of twelve its subsidiaries or Limited Affiliates. The restrictions in this Section 6(a)(ii) shall not apply to (12x) months immediately following the termination general solicitations that are not specifically directed to employees of the Company or any Limited Affiliate, (y) serving as a reference at the request of an employee or (z) actions taken in the good faith performance of her duties for the Company.
(ii) Notwithstanding the foregoing provisions of this Section 6(a), in the event Executive’s employment for whatever reasonhereunder terminates due to the expiration of the Term, the Restriction Period shall not apply unless the Company provides Executive will not directly solicit with at least 60 days advance written notice prior to the sale date of goodssuch expiration of its election to have the Restriction Period apply and in connection therewith agrees to pay the Executive two times (2X) the then Base Salary, services, or a combination of goods payable ratably over the Restriction Period in equal monthly installments. The Restriction Period shall be tolled during (and services from the established customers shall be deemed automatically extended by) any period in which Executive is determined to be in violation of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope provisions of activity contained in this Section 6 are reasonable and do not impose by a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interestsrelevant trier of fact, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right but only with respect to specific performance of provisions to which the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at lawbreach relates.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Noncompetition and Nonsolicitation. You agree that you shall not, directly or indirectly, without the prior written consent of the Company:
(a) In consideration while an employee of the benefits to Company and during the one-year period following termination of employment, engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business), in any geographic location in which the Executive may be entitled under Company engages (or in which the terms Company has been actively planning to engage) as of this Agreementthe date of termination of your employment, the confidential information relating to that compete directly with the Company and its business previously provided to the Executivesubsidiaries, and the Company’s promise to provide the Executive with future confidential information during the course any other affiliates of the Executive’s employment with Company whose business is related to that of the Company (including new confidential in the business of television broadcasting, newspaper publishing, or other digital information provided to the Executive or entertainment services, or any other business in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not, directly or indirectly:
(i) carry on or engage in Competitive Duties (as a director, employee, consultant, contractor or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit affiliates is engaged (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor of which the Company or any of its Subsidiariesaffiliates has been actively planning to engage) at the time of termination (in all cases other than businesses that are immaterial to the Company), to terminateincluding any activities or businesses of the Company, cease its subsidiaries or lessen its relationship such affiliates that involve any person or entity with whom the Company has engaged in substantive dialogue at the time of termination of your employment regarding entry into a material business relationship (but only to the extent that a material business relationship is consummated with any such person or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant of the Company or any of its Subsidiaries or any person who was an employee, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last entity within twelve (12) months following the termination of your employment) (“Competitive Activities”), or assist any person or entity in any way to do, or attempt to do, anything prohibited by this Section 1(a); provided, however, that the foregoing shall not prevent you from providing services as a consultant, employee, advisor, or otherwise with a person or entity that engages in Competitive Activities, if such service relationship is restricted solely to one or more portions of the Executive’s employment with operations and businesses of such person or entity, such portions do not engage in Competitive Activities, and you undertake not to, and do not, have any discussions with, or participate in, the governance, management or operations of such person or entity or any business segments thereof that engage in Competitive Activities; or
(b) while an employee of the Company and during the one-year period following termination of employment for any reason, (orA) solicit, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractorsrecruit or hire, or consultants attempt to solicit, recruit or hire, any employees of the Company or any of its Subsidiaries persons who have worked for the Company during the Executive’s employment 12 month period immediately preceding such solicitation, recruitment or hiring or attempt thereof (other than your secretary/executive assistant); (B) intentionally interfere with the relationship of the Company with any person or entity who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, developer, subcontractor, licensee, licensor or other business relation of, the Company).
; or (bC) The Executive agrees assist any person or entity in any way to do, or attempt to do, anything prohibited by clause (A) or (B) above; provided that the Company’s and its Subsidiaries’ substantial investments preceding clause (A) shall not prohibit you from (x) conducting a general solicitation made by means of a general purpose advertisement not specifically targeted at employees or other persons or entities described in its business interestsclause (A) or (y) soliciting or hiring any employee or other person or entity described in clause (A) who is referred to you by search firms, goodwill and confidential information are worthy employment agencies or other similar entities, provided that such firms, agencies or entities have not been instructed by you to solicit any such employee or person or entity or category thereof. The periods during which the provisions of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than 1 apply shall be tolled during (and shall be deemed automatically extended by) any hardship period in which you are in violation of the Executive might experience provisions of this Section 1, to the extent permitted by complying with its termslaw. The Executive agrees provisions of Section 1(a) shall not be deemed breached as a result of your passive ownership of: (i) less than an aggregate of 2% of any class of securities of an entity engaged, directly or indirectly, in Competitive Activities, so long as you do not actively participate in the business of such entity; provided, however, that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement such securities are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and listed on a national securities exchange; or (ii) shall not apply less than an aggregate of 1% in those portions value of the Restricted Area located within the State any instrument of Oklahoma. Insteadindebtedness of an entity engaged, the Executive agrees thatdirectly or indirectly, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliatesCompetitive Activities.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Noncompetition and Nonsolicitation. (ai) In consideration of the benefits to which the Executive may be entitled under the terms of this Agreement, the confidential information relating to the Company and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the During Executive’s employment with the Company (including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following termination of employment for any reason (the “Restricted Period”), without the prior written consent of the Company, Executive shall not within the United States, United Kingdom or any other city, county, state, commonwealth, province, territory, country or political subdivision in which the Group operates or has taken steps to operate prior to the termination of the Executive’s employment employment, directly or indirectly, either for whatever reasonExecutive or any other person or entity, manage, control, materially participate in, permit Executive’s name to be used by, act as consultant or advisor to, or render material services for (alone or in association with any person, firm, corporation or other business organization), any entity that engages in or has taken material steps to prepare to engage in, or owns, invests in, manages, conducts or controls any venture or enterprise engaged in or preparing to engage in, any Competitive Business; provided that it shall not be a violation of this Section 5(c)(i) for Executive to do any of the foregoing at an entity or an affiliated group of entities that engage in or has taken material steps to prepare to engage in, or owns, invests in, manages, conducts or controls any venture or enterprise engaged in or preparing to engage in, a Competitive Business so long as Executive is not involved in such Competitive Business. Nothing herein shall prohibit Executive from being a passive owner of the equity securities of a corporation engaged in any Competitive Business, so long as Executive has no active participation in the business of such corporation. As used herein, the term “Competitive Business” shall mean any business which provides investment advisory or investment management services. Service on other boards approved by the Board and as permitted pursuant to the Offer Letter, is not considered a violation of this paragraph 5(c).
(ii) During the Restricted Period, Executive will shall not, directly or indirectly:
, (iA) carry on knowingly interfere with any relationship which may exist from time to time between any member of the Group and any of its or engage in Competitive Duties their employees, consultants, agents or representatives, (as a directorB) solicit, employeehire or attempt to hire, consultant, contractor or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, hiring or attempting to inducehire, such Covered Customer any person who is an employee or Prospective Customer contractor of any member of the Group, (C) divert, attempt to cease or reduce its business with the Company or its Subsidiariesdivert, or solicit, or assist another in diverting, attempting to divert or soliciting, the customer business or account of, or accepting any approach from, any Protected Client or (D) violate any other terms related to unfair interference or non-solicitation, pursuant to the DIP and any long-term incentive awards. Notwithstanding the foregoing, it shall not be a violation of this Section 5(c) for Executive to do business with the Company solicit or its Subsidiaries; orhire independent accounting, legal and similar firms or his personal assistant.
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor Executive acknowledges the highly competitive nature of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with the Company or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant business of the Company or any Group and the relationship of its Subsidiaries or any person who was an employeeconfidence and trust between Executive and the Group. Accordingly, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractors, or consultants of the Company or any of its Subsidiaries during the Executive’s employment with the Company).
(b) The Executive acknowledges and agrees that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained restrictions contained in this Agreement are reasonable and are not greater than necessary to protect for the confidential information, good-will and other protection of the legitimate business interests of the Company.Group, that any violation of these restrictions would cause substantial and irreparable injury to the Group, and these restrictions will not cause an undue hardship. EXECUTION VERSION
(civ) Notwithstanding If, at the foregoingtime of enforcement of this Section 5(c), an arbitrator or court shall hold that the above-referenced limitations in Sections 6(a)(i) duration, scope, area or other restrictions stated herein are unreasonable under circumstances then existing, Executive and (ii) shall not apply in those portions the Company agree that it is the intention of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition parties that such provision should be enforceable to the limitations maximum extent permissible under applicable law. Executive and the Company further agree that any arbitrator or court is expressly authorized to and shall modify any unenforceable provision of this Agreement instead of severing the unenforceable provision from this Agreement in Section 6(a)(iii)its entirety, whether by rewriting the restrictions on the Executive’s activities within those portions offending provision, deleting any or all of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliatesoffending provision, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as adding additional language to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry or by making any other modifications it deems warranted to carry out the intent and agreement of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of the parties to the maximum extent permitted by law. The parties expressly agree that this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements Agreement as so modified by the Executive arbitrator or others active on the Executive’s behalf, without any showing court shall be binding upon and enforceable against each of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at lawthem.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Samples: Severance Rights Agreement (Janus Henderson Group PLC)
Noncompetition and Nonsolicitation. (a) In consideration of the benefits to which the The Executive may be entitled under the terms of this Agreement, the confidential information relating to the Company hereby covenants and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information agrees that during the course of Term and for the Executive’s employment with respective periods set forth below immediately following the Company (including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged termination by the Company or any the Executive, as applicable, of its affiliateshis employment under the respective circumstances set forth below he shall not, and thereafter for a period of twelve (12) months immediately following without the termination prior written consent of the Executive’s employment for whatever reasonBoard, the Executive will notat any time, directly or indirectly, on his own behalf or on behalf of any Person:
(i) carry on own, manage, operate, control, be employed by, participate in, provide consulting services to, or engage be connected or associated in Competitive Duties any manner with the ownership, management, operation or control of any business which is in competition with the Company (in the business in which the Company is substantially engaged during the Term in the case of acts committed during the Term or in the business in which the Company is substantially engaged at the time of termination of Executive's Employment in the case of acts committed after the Term) or any of its Affiliates in any state of the United States or in any foreign country in which any of them are engaged in business during the Term in the case of acts committed during the Term or in any state of the United States or in any foreign country in which any of them are engaged in business at the time of termination of Executive's employment in the case of acts committed after the Term for as a director, employee, consultant, contractor or otherwise) within long as the Restricted Area for any Competing Business;Company continues to conduct such business (the "Non-Compete"),
(ii) solicit (or assist another in soliciting) take any Covered Customer or Prospective Customer for action to cause the purpose of inducingsolicitation of, or attempting to inducerecommend that, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiariesany supplier, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employeeclient, customer, contractor, consultantvendor, supplier, or vendor of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with the Company or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor agent or consultant of the Company or any of its Subsidiaries Affiliates or any person who was an employeeother Person having business relations with the Company, contractordiscontinue business or cease such relationship, in whole or consultant of in part, with the Company or any of its Subsidiaries at any time during Affiliates (the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractors, or consultants of the Company or any of its Subsidiaries during the Executive’s employment with the Company"Customer Non-Solicit").,
(biii) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than employ any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement Person employed by the Company or any of its affiliatesAffiliates at the time of, and thereafter for a period of twelve (12) or during the 12 months immediately following the preceding, such termination of the Executive’s 's employment with the Company (the "Non-Hire") or
(iv) solicit for whatever reason, employment (other than through unaffiliated employment recruiting or placement firms or services who are not specifically directed to solicit employees of the Executive will not directly solicit Company or provided with the sale names of goods, servicesany such employees) any Person employed by the Company or any of its Affiliates at the time of, or a combination during the 12 months preceding such termination of goods and services from the established customers of Executive's employment with the Company, or otherwise encourage or entice any such Person to leave such employment (the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time"Employee Non- Solicit"), geographic areaprovided, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interestshowever, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained nothing in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to preclude the executive and managerial positions that the Executive has held and will hold with the Company.from owning less than five percent of any class of publicly traded equity of any entity Customer Employee Reason for Termination Non-Compete Non-Solicit Non-Hire Non-Solicit Good Reason 1 1/2 years 1 1/2 years 1 1/2 years 1 1/2 years For Cause other than 2 years 2 years 1 1/2 years 2 years Non-Performance For Non-Performance 1 years 1 years 1 years 1 years
Appears in 1 contract
Noncompetition and Nonsolicitation. (a) In consideration of the benefits to which the The Executive may be entitled under the terms of this Agreement, the confidential information relating to the Company hereby covenants and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information agrees that during the course of Term and for the Executive’s employment with respective periods set forth below immediately following the Company (including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged termination by the Company or any the Executive, as applicable, of its affiliateshis employment under the respective circumstances set forth below he shall not, and thereafter for a period of twelve (12) months immediately following without the termination prior written consent of the Executive’s employment for whatever reasonBoard, the Executive will notat any time, directly or indirectly, on his own behalf or on behalf of any Person:
(i) carry on own, manage, operate, control, be employed by, participate in, provide consulting services to, or engage be connected or associated in Competitive Duties any manner with the ownership, management, operation or control of any business which is in competition with the Company (in the business in which the Company is substantially engaged during the Term in the case of acts committed during the Term or in the business in which the Company is substantially engaged at the time of termination of Executive's Employment in the case of acts committed after the Term) or any of its Affiliates in any state of the United States or in any foreign country in which any of them are engaged in business during the Term in the case of acts committed during the Term or in any state of the United States or in any foreign country in which any of them are engaged in business at the time of termination of Executive's employment in the case of acts committed after the Term for as a director, employee, consultant, contractor or otherwise) within long as the Restricted Area for any Competing Business;Company continues to conduct such business (the "Non-Compete"),
(ii) solicit (or assist another in soliciting) take any Covered Customer or Prospective Customer for action to cause the purpose of inducingsolicitation of, or attempting to inducerecommend that, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiariesany supplier, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employeeclient, customer, contractor, consultantvendor, supplier, or vendor of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with the Company or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor agent or consultant of the Company or any of its Subsidiaries Affiliates or any person who was an employeeother Person having business relations with the Company, contractordiscontinue business or cease such relationship, in whole or consultant of in part, with the Company or any of its Subsidiaries at any time during Affiliates (the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractors, or consultants of the Company or any of its Subsidiaries during the Executive’s employment with the Company"Customer Non-Solicit").,
(biii) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than employ any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement Person employed by the Company or any of its affiliatesAffiliates at the time of, and thereafter for a period of twelve (12) or during the 12 months immediately following the preceding, such termination of the Executive’s 's employment with the Company (the "Non-Hire") or
(iv) solicit for whatever reason, employment (other than through unaffiliated employment recruiting or placement firms or services who are not specifically directed to solicit employees of the Executive will not directly solicit Company or provided with the sale names of goods, servicesany such employees) any Person employed by the Company or any of its Affiliates at the time of, or a combination during the 12 months preceding such termination of goods and services from the established customers of Executive's employment with the Company, or otherwise encourage or entice any such Person to leave such employment (the Company’s subsidiaries or "Employee Non- Solicit"), provided, however, that nothing in this Agreement shall preclude the Company’s affiliates.executive from owning less than five percent of any class of publicly traded equity of any entity Customer Employee Reason for Termination Non-Compete Non-Solicit Non-Hire Non-Solicit Good Reason 1 1/2 years 1 1/2 years 1 1/2 years 1 1/2 years For Cause other than 2 years 2 years 1 1/2 years 2 years Non-Performance For Non-Performance 1 years 1 years 1 years 1 years Company Termination 0 years 1 1/2 years 1 1/2 years 1 1/2 years for other than Cause and Disability Voluntary Resignation not for 2 years 2 years 2 years 2 years Good Reason Company Failure to Renew 0 years 2 years 1 year 2 years Executive Failure to Renew 0 years 2 years 1 year 2 years Disability 0 years 1 1/2 years 1 year 1 year
(db) Although The Employee acknowledges and agrees that
(i) the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained restrictive covenants set forth in this Section 6 8 (the "Restrictive Covenants") are reasonable and do not impose a greater restraint than necessary valid in geographical and temporal scope and in all other respects, and
(ii) it is the intention of the parties hereto that the Restrictive Covenants be enforceable to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interestsfullest extent permitted by applicable law. Therefore, if this any court determines that any of the Restrictive Covenants, or any part thereof, is judicially determined not to be the caseinvalid or unenforceable, the Company remainder of the Restrictive Covenants shall not thereby be affected and the Executive specifically agree that the limitations contained in this Agreement shall be reformed given full force and effect, without regard to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation invalid or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sectionsunenforceable parts. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this AgreementSpecifically, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in if any court of competent jurisdictionjurisdiction should hold that any portion of the Restrictive Covenants is overly broad as to one or more states of the United States or one or more foreign jurisdictions, restraining any violation then that state or further violation states or foreign jurisdiction or jurisdictions shall be eliminated from the territory to which the Restrictive Covenants apply and the restrictions shall remain applicable in all other states of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm United States and without any showing that the Company or its Subsidiaries do not have an adequate remedy at lawforeign jurisdictions.
(fc) The covenants made by If any court determines that any of the Executive Restrictive Covenants, or any part thereof, is invalid or unenforceable for any reason, such court shall have the power to modify such Restrictive Covenant, or any part thereof, and, in this Agreement are in addition to all other duties owed by the Executive to the Companyits modified form, including, without limitation, fiduciary duties of loyalty such restrictive covenant shall then be valid and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Companyenforceable.
Appears in 1 contract
Noncompetition and Nonsolicitation. (a) In consideration For purposes of the benefits to which the Executive may be entitled under the terms Sections 5, 6, 7, 8, 9, 10 and 11 of this Agreement, the confidential information relating references to the Company shall include its subsidiaries and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s employment with the Company Affiliates.
(including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the a) Executive agrees that Executive shall not, while employed or otherwise engaged by an employee of the Company or any of its affiliates, and thereafter for a during the one-year period of twelve (12) months immediately following the termination of employment (the Executive’s employment for whatever reason, the Executive will not“Restriction Period”), directly or indirectly, without the prior written consent of the Company:
(i) carry on or (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the world that are principally or primarily in the business of producing or distributing Spanish language media content, or owning or operating Hispanic television networks (“Competitive Duties Activities”) or (as a directorB) assisting any Person in any way to do, employeeor attempt to do, consultant, contractor anything prohibited by this Section 5(a)(i)(A) above; or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company, including (A) soliciting, recruiting or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, hiring (or attempting to inducesolicit, such Covered Customer recruit or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraginghire) any employee, contractor, consultant, supplier, or vendor employees of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with Persons who have worked for the Company during the 12-month period immediately preceding such solicitation, recruitment or any of its Subsidiaries, hiring or attempt thereof; (B) on behalf of a Competing Business, engage, employ, soliciting or encouraging (or attempting to solicit or contact for employment or engagement (or assist another in such activityencourage) any employee, contractor or consultant employee of the Company or any to leave the employment of its Subsidiaries or any person who was an employee, contractor, or consultant the Company; (C) intentionally interfering with the relationship of the Company with any Person who or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive which is employed by the Company for less than twelve (12) months, those persons who were employees, contractorsor otherwise engaged to perform services for, or consultants any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 5(a)(ii)(A), (B) or (C) above. If Executive’s termination of employment is due solely to the expiration of the Company or Term as provided for in Section 1(a) and the parties hereto have not decided to renew the Term, the Restriction Period shall be deemed void ab initio. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Executive is in violation of its Subsidiaries during the Executive’s employment with the Companyprovisions of this Section 5(a).
(b) The provisions of Section 5(a) shall not be deemed breached as a result of Executive’s passive ownership of less than an aggregate of 3% of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Executive agrees does not actively participate in the business of such Person; provided, however, that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 such stock is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Companylisted on a national securities exchange.
(c) Notwithstanding Without limiting the foregoinggenerality of Section 11, notwithstanding the fact that any provision of this Section 5 is determined not to be specifically enforceable, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions Company will nevertheless be entitled to recover monetary damages as a result of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions breach of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliatessuch provision.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Executive acknowledges that Executive is being provided with significant additional consideration (to which Executive is not otherwise entitled), including stock options and restricted stock, to induce Executive to enter into this Agreement. Executive expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Executive further acknowledges that although Executive’s violation or threatened or attempted violation of compliance with the covenants contained in this Section 6 will cause irreparable harm Sections 5, 6, 7, 8 and 9 may prevent Executive from earning a livelihood in a business similar to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach business of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty Executive’s experience and disclosure, which Executive acknowledges and agrees capabilities are attendant to the executive and managerial positions such that the Executive has held other opportunities to earn a livelihood and will hold with the Companyadequate means of support for Executive and Executive’s dependents.
Appears in 1 contract
Samples: Employment Agreement (Hemisphere Media Group, Inc.)
Noncompetition and Nonsolicitation. (a) In consideration Executive agrees that Executive shall not, directly or indirectly, without the prior written consent of the benefits to which the Executive may be entitled under the terms Company:
(i) while an employee of this Agreement, the confidential information relating to the Company and its during the 18-month period following termination of employment (the “Non-Compete Period”), (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business previously provided to the Executiveof owning, and operating or managing any business) in any geographic location in which the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s employment , its subsidiaries or Affiliates engage in (other than automobile businesses), whether through selling, distributing, manufacturing, marketing, purchasing, or otherwise, that compete directly or indirectly with the Company or any of its subsidiaries or Affiliates (“Competitive Activities”), it being understood that Competitive Activities as of the date hereof include, without limitation, the publication and membership businesses of the Company or any subsidiary or Affiliate of the Company; the sale, repair or service of recreational vehicles or parts and accessories for recreational vehicles or the sale of any ancillary products that are sold in connection with the sale of recreational vehicles, including but not limited to credit life insurance, roadside assistance programs and extended service warranties, in the recreational vehicle, camping and outdoor living markets; the business of developing, marketing, providing and implementing products and services (including new confidential information provided insurance, financing, warranties and road-side assistance) to owners of recreational vehicles and motorcycles; the Executive business of providing consumer shows to owners of recreational vehicles and boats; and the business of publishing magazines directed to owners of recreational vehicles, all-terrain vehicles, boats and outdoor enthusiasts; or (B) assist any Person in connection withany way to do, or attempt to do, anything prohibited by Section 6(a)(i)(A) above; or
(ii) while an employee of the Company and as a result of, during the Merger18-month period following termination of employment (the “Non-Solicitation Period”), and so as (A) solicit or attempt to protect such confidential information and solicit any customer, client, supplier, licensee, licensor or other business relation (or any actively sought prospective customer, client, supplier, licensee, licensor or other business relation) of the Company’s legitimate business interests (including the goodwill with which the Executive will be associatedCompany or any of its subsidiaries or Affiliates, and that the Executive will help build during the Executive’s employment)to purchase any goods or services manufactured, the Executive agrees that while employed sold or otherwise engaged provided by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not, directly or indirectly:
(i) carry on or engage in Competitive Duties (as a director, employee, consultant, contractor or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducingsubsidiaries, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with Affiliates from anyone other than the Company or any of its Subsidiariessubsidiaries or such Affiliates; or (B) assist any Person in any way to do, or not attempt to do business with the Company or its Subsidiariesdo, anything prohibited by Section 6(a)(ii)(A) above; or
(iii) (A) encourage (while an employee of the Company and during the Non-Solicitation Period, knowingly perform any action, activity or assist another in encouraging) any employee, contractor, consultant, supplier, course of conduct which is substantially detrimental to the businesses or vendor business reputations of the Company or any of its Subsidiariessubsidiaries or Affiliates, to terminateincluding (A) soliciting, cease recruiting or lessen its relationship with the Company or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement hiring (or assist another in such activityattempting to solicit, recruit or hire) any employee, contractor or consultant employees of the Company or any of its Subsidiaries subsidiaries or Affiliates or Persons who have worked for the Company or any person who was an employeeof its subsidiaries or Affiliates (x) during the 12-month period immediately preceding such solicitation, contractorrecruitment or hiring or attempt thereof if the business for which such employee has been solicited, recruited or consultant hired is a Competitive Activity or (y) during the 6-month period immediately preceding such solicitation, recruitment or hiring or attempt thereof if the business for which such employee has been solicited, recruited or hired is not a Competitive Activity; (B) intentionally interfering with the relationship of the Company or any of its Subsidiaries at subsidiaries or Affiliates with any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive Person who or which is employed by the Company for less than twelve (12) months, those persons who were employees, contractorsor otherwise engaged to perform services for, or consultants of any customer, client, supplier, licensee, licensor or other business relation of, the Company or any of its Subsidiaries subsidiaries or Affiliates; or (C) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 6(a)(iii)(A) or (B) above. The Non-Compete Period and Non-Solicitation Period shall be tolled during (and shall be deemed automatically extended by) any period in which Executive is in violation of the Executive’s employment with the Companyprovisions of this Section 6(a).
(b) The provisions of Section 6(a) shall not be deemed breached as a result of Executive’s passive ownership of: (i) less than an aggregate of 5% of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Executive agrees does not actively participate in the business of such Person; provided, however, that the Company’s and its Subsidiaries’ substantial investments such stock is listed on a national securities exchange; or (ii) less than an aggregate of 5% in its business interestsvalue of any instrument of indebtedness of a Person engaged, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to timedirectly or indirectly, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the CompanyCompetitive Activities.
(c) Notwithstanding the foregoing, the aboveIf a final and non-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions appealable judicial determination is made that any of the Restricted Area located within the State provisions of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the caseconstitutes an unreasonable or otherwise unenforceable restriction against Executive, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation provisions of the covenants contained in this Section 6 will cause irreparable harm not be rendered void but will be deemed to be modified to the Company minimum extent necessary to remain in force and its Subsidiaries effect for the longest period and largest geographic area that monetary damages would not be sufficient remedy for constitute such an unreasonable or unenforceable restriction. Moreover, and without limiting the generality of Section 12, notwithstanding the fact that any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation provision of this Section 66 is determined to not be enforceable through specific performance, or both, or other appropriate judicial remedy, writ or order, in any court the Company will nevertheless be entitled to recover monetary damages as a result of competent jurisdiction, restraining any violation or further violation Executive’s breach of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at lawprovision.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Samples: Employment Agreement (Camping World Holdings, Inc.)
Noncompetition and Nonsolicitation. (a) In consideration of the benefits to which the a. Executive may be entitled under the terms of this Agreement, the confidential information relating to the Company and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information agrees that during the course of the Executive’s his or her employment with the Company (including new confidential information provided to the Executive in connection withCompany, and as a result of, for the Merger), and so as to protect such confidential information and the Company’s legitimate business interests later of (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of i) twelve (12) months immediately following the termination of that employment if Executive is not entitled to receive severance payments pursuant to this Agreement, or (ii) the Executive’s employment for whatever reasonlast day of the Severance Period or Extended Severance Period if Executive is entitled to receive severance payments pursuant to this Agreement, Executive will not directly or indirectly own, manage, control, participate in, lend his or her name to, become an employee of, act as consultant or advisor to, or render services to, any competitor to the Company in the television home shopping business, the infomercial business, or any internet sites or catalog business that directly compete with the Company.
b. Executive will notagrees that during his or her employment with the Company, directly or indirectly:
and for the later of (i) carry on or engage in Competitive Duties (as a director, employee, consultant, contractor or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with the Company or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant of the Company or any of its Subsidiaries or any person who was an employee, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last twelve (12) months following the termination of that employment if Executive is not entitled to receive severance payments pursuant to this Agreement, or (ii) the last day of the Executive’s employment with the Company (or, Severance Period or Extended Severance Period if the Executive is employed by the Company for less than twelve (12) monthsentitled to receive severance payments pursuant to this Agreement, those persons who were employees, contractors, Executive will not hire or consultants attempt to induce any employee of the Company to leave his or her employ, or in any of its Subsidiaries other way interfere with the Company's employment relationships.
c. Executive agrees that during the Executive’s his or her employment with the Company).
(b) The Executive agrees that the Company’s , and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope later of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(ci) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of that employment if Executive is not entitled to receive severance payments pursuant to this Agreement, or (ii) the Executive’s employment for whatever reasonlast day of the Severance Period or Extended Severance Period if Executive is entitled to receive severance payments pursuant to this Agreement, the Executive will not directly solicit the sale of goodsattempt to induce any customer, servicessupplier, franchisee, licensee, or a combination other business relation of goods and services from the established customers of Company to cease doing business with the Company, or in any other way interfere with the Company’s subsidiaries or the Company’s affiliates's business relationships.
(d) Although d. Executive agrees that in the event that he or she violates any of his obligations under this Paragraph that the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to will be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries irreparably injured and that monetary damages would not will be sufficient remedy for any breach of these sectionsinsufficient to address that injury. The Accordingly, Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent may obtain immediate injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or orderto enjoin any future violations, in addition to any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy other remedies available at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Samples: Executive Separation Agreement (Valuevision Media Inc)
Noncompetition and Nonsolicitation. (a) In consideration The Executive acknowledges that in the course of her employment with the benefits Company pursuant to which the Executive may be entitled under the terms of this Agreement, the Agreement she will become familiar with trade secrets and customer lists and other confidential information relating to concerning the Company and its business previously provided subsidiaries and affiliates and predecessors thereof and that her services will be of special, unique and extraordinary value to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s employment with the Company (including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not, directly or indirectly:
(i) carry on or engage in Competitive Duties (as a director, employee, consultant, contractor or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with the Company or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant of the Company or any of its Subsidiaries or any person who was an employee, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractors, or consultants of the Company or any of its Subsidiaries during the Executive’s employment with the Company).
(b) The Executive agrees that during the Company’s Employment Period and its Subsidiaries’ substantial investments for one year thereafter in its the case of either Termination for Good Reason following a Change in Control or Termination without Cause, or for two years thereafter in the case of termination of employment for any other reason (the ''Noncompetition Period"), she shall not in any manner, directly or indirectly, through any person, firm or corporation, alone or as a member of a partnership or as an officer, director, stockholder, investor or employee of or in any other corporation or enterprise or otherwise, engage or be engaged, or assist any other person, firm corporation or enterprise in engaging or being engaged, in any business intereststhen actively being conducted by the Company in any geographic area in which the Company is conducting such business (whether through manufacturing or production, goodwill and confidential information are worthy of protection and calling on customers or prospective customers, or otherwise). Notwithstanding the foregoing, subsequent to the Employment Period the Executive may engage or be engaged, or assist any other person, firm, corporation or enterprise in engaging or being engaged, in any business activity which is not competitive with a business activity being conducted by the Company at the time subsequent to the Employment Period that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained first engages or assists in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate such business interests of the Companyactivity.
(c) Notwithstanding The Executive further agrees that during the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii) Noncompetition Period she shall not apply in those portions any manner, directly or indirectly (i) induce or attempt to induce any employee of the Restricted Area located within the State Company or of Oklahoma. Insteadany of its subsidiaries or affiliates to terminate or abandon his employment, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions or any customer of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliatessubsidiaries or affiliates to terminate or abandon its relationship, and thereafter for a period of twelve any purpose whatsoever, or (12ii) months immediately following the termination in connection with any business to which Section 6(b) applies, call on, service, solicit or otherwise do business with any then current or prospective customer of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale Company or of goods, services, or a combination any of goods and services from the established customers of the Company, the Company’s its subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained Nothing in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and shall prohibit the Executive specifically agree that from being (i) a stockholder in a mutual fund or a diversified investment company or (ii) a passive owner of not more than 2% of the limitations contained outstanding stock of any class of a corporation any securities of which are publicly traded, so long as the Executive has no active participation in this Agreement be reformed to the extent necessary to make this Agreement enforceablebusiness of such corporation.
(e) The Executive acknowledges that If, at the Executive’s violation or threatened or attempted violation time of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation enforcement of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any a court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing holds that the Company restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum period, scope or its Subsidiaries do not have an adequate remedy at 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 period, scope and area permitted by law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Noncompetition and Nonsolicitation. (a) In consideration For purposes of the benefits to which the Executive may be entitled under the terms Sections 5, 6, 7, 8, 9, 10 and 11 of this Agreement, references to the confidential information relating Company shall include its subsidiaries and any Affiliates of the Company that are Controlled by the Company.
(a) Executive agrees that Executive shall not, directly or indirectly, without the prior written consent of the Company:
(i) while an employee of the Company and during the two-year period following termination of employment for any reason (or in the case of a termination upon the expiration of the Initial Term in connection with a timely Non-Renewal by the Company or the Executive, during the one-year period following such termination), engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business), in any geographic location in which the Company engages (or in which the Company has been actively planning to engage) as of the date of termination of Executive’s employment, that compete directly with the Company and its business previously provided to the Executivesubsidiaries, and the Company’s promise to provide the Executive with future confidential information during the course any other Affiliates of the Executive’s employment with Company whose business is related to that of the Company (including new confidential in the business of television broadcasting, newspaper publishing, or other digital information provided to the Executive or entertainment services, or any other business in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not, directly or indirectly:
(i) carry on or engage in Competitive Duties (as a director, employee, consultant, contractor or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit Affiliates is engaged (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor of which the Company or any of its SubsidiariesAffiliates has been actively planning to engage) at the time of termination (in all cases other than businesses that are immaterial to the Company), to terminateincluding any activities or businesses of the Company, cease its subsidiaries or lessen its relationship such Affiliates that involve any person or entity with whom the Company has engaged in substantive dialogue at the time of termination of Executive’s employment regarding entry into a material business relationship (but only to the extent that a material business relationship is consummated with any such person or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant of the Company or any of its Subsidiaries or any person who was an employee, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last entity within twelve (12) months following the termination of Executive’s employment) (“Competitive Activities”), or assist any Person in any way to do, or attempt to do, anything prohibited by this Section 5(a)(i); provided that the foregoing shall not prevent Executive from providing services as a consultant, employee, advisor, or otherwise with a Person that engages in Competitive Activities, if such service relationship is restricted solely to one or more portions of the Executive’s employment with operations and businesses of such Person, such portions do not engage in Competitive Activities, and Executive undertakes not to, and does not, have any discussions with, or participate in, the governance, management or operations of such Person or any business segments thereof that engage in Competitive Activities; or
(ii) while an employee of the Company and during the two-year period following termination of employment for any reason (or, if or in the Executive is employed case of a termination upon the expiration of the Initial Term in connection with a timely Non-Renewal by the Company for less than twelve or the Executive, during the one-year period following such termination), (12A) monthssolicit, those persons who were employees, contractorsrecruit or hire, or consultants attempt to solicit, recruit or hire, any employees of the Company or any of its Subsidiaries Persons who have worked for the Company during the 12 month period immediately preceding such solicitation, recruitment or hiring or attempt thereof (other than Executive’s employment secretary/executive assistant); (B) intentionally interfere with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, developer, subcontractor, licensee, licensor or other business relation of, the Company; or (C) assist any Person in any way to do, or attempt to do, anything prohibited by Section 5(a)(ii)(A) or (B) above; provided that the preceding Section 5(a)(ii)(A) shall not prohibit Executive from (x) conducting a general solicitation made by means of a general purpose advertisement not specifically targeted at employees or other Persons described in Section 5(a)(ii)(A) or (y) soliciting or hiring any employee or other Person described in Section 5(a)(ii)(A) who is referred to Executive by search firms, employment agencies or other similar entities, provided that such firms, agencies or entities have not been instructed by Executive to solicit any such employee or Person or category thereof. The periods during which the provisions of Section 5(a) apply shall be tolled during (and shall be deemed automatically extended by) any period in which Executive is in violation of the provisions of this Section 5(a), to the extent permitted by law.
(b) The provisions of Section 5(a) shall not be deemed breached as a result of Executive’s passive ownership of: (i) less than an aggregate of 2% of any publicly traded class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Executive agrees that does not actively participate in the Company’s and its Subsidiaries’ substantial investments business of such Person; or (ii) less than an aggregate of 1% in its business interestsvalue of any instrument of indebtedness of a Person engaged, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to timedirectly or indirectly, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the CompanyCompetitive Activities.
(c) Notwithstanding Executive acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Executive acknowledges that Executive is being provided with significant additional consideration (to which Executive is not otherwise entitled) to induce Executive to enter into this Agreement. In light of the foregoing, and the above-referenced limitations Company’s and Executive’s mutual understanding that in the course of Executive’s duties with the Company he will acquire Confidential Information that would be of significant benefit to a subsequent employer that competes with the Company, Executive expressly acknowledges and agrees that each and every restraint imposed by this Agreement (specifically including Section 5(a)) is reasonable with respect to subject matter, time period and geographical area. Executive further acknowledges that although Executive’s compliance with the covenants contained in Sections 6(a)(i) 5, 6, 7, 8 and (ii) shall not apply 9 may prevent Executive from earning a livelihood in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition a business similar to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers business of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation experience and capabilities are such that Executive has other opportunities to earn a livelihood and adequate means of the covenants contained in this Section 6 will cause irreparable harm to the Company support for Executive and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at lawdependents.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Noncompetition and Nonsolicitation. (a) In consideration For purposes of the benefits to which the Executive may be entitled under the terms Sections 5, 6, 7, 8, 9, 10 and 11 of this Agreement, references to the confidential information relating Company shall include its subsidiaries and any Affiliates of the Company that are Controlled by the Company.
(a) Executive agrees that Executive shall not, directly or indirectly, without the prior written consent of the Company:
(i) while an employee of the Company and, if Executive is terminated during the Term, within the two-year period following the termination, engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business), in any geographic location in which the Company engages (or in which the Company has been actively planning to engage) as of the date of termination of Executive’s employment, that compete directly with the Company and its business previously provided to the Executivesubsidiaries, and the Company’s promise to provide the Executive with future confidential information during the course any other Affiliates of the Executive’s employment with Company whose business is related to that of the Company (including new confidential in the business of television broadcasting, newspaper publishing, or other digital information provided to the Executive or entertainment services, or any other business in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not, directly or indirectly:
(i) carry on or engage in Competitive Duties (as a director, employee, consultant, contractor or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit Affiliates is engaged (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor of which the Company or any of its SubsidiariesAffiliates has been actively planning to engage) at the time of termination (in all cases other than businesses that are immaterial to the Company), to terminateincluding any activities or businesses of the Company, cease its subsidiaries or lessen its relationship such Affiliates that involve any person or entity with whom the Company has engaged in substantive dialogue at the time of termination of Executive’s employment regarding entry into a material business relationship (but only to the extent that a material business relationship is consummated with any such person or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant of the Company or any of its Subsidiaries or any person who was an employee, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last entity within twelve (12) months following the termination of Executive’s employment) (“Competitive Activities”), or assist any Person in any way to do, or attempt to do, anything prohibited by this Section 5(a)(i); provided, however, that the foregoing shall not prevent Executive from providing legal services to any Person, including any Person that engages in Competitive Activities, following termination of employment or be interpreted in any way that would otherwise violate applicable Rules of Professional Conduct, provided, further, that the foregoing shall not prevent Executive from providing services as a consultant, employee, advisor, or otherwise with a Person that engages in Competitive Activities, if such service relationship is restricted solely to one or more portions of the Executive’s employment with operations and businesses of such Person, such portions do not engage in Competitive Activities, and Executive undertakes not to, and does not, have any discussions with, or participate in, the governance, management or operations of such Person or any business segments thereof that engage in Competitive Activities; or
(ii) while an employee of the Company (orand, if the Executive is employed by terminated during the Company for less than twelve Term, within the two-year period following the termination, (12A) monthssolicit, those persons who were employees, contractorsrecruit or hire, or consultants attempt to solicit, recruit or hire, any employees of the Company or any of its Subsidiaries Persons who have worked for the Company during the 12 month period immediately preceding such solicitation, recruitment or hiring or attempt thereof (other than Executive’s employment secretary/executive assistant); (B) intentionally interfere with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, developer, subcontractor, licensee, licensor or other business relation of, the Company; or (C) assist any Person in any way to do, or attempt to do, anything prohibited by Section 5(a)(ii)(A) or (B) above; provided that the preceding Section 5(a)(ii)(A) shall not prohibit Executive from (x) conducting a general solicitation made by means of a general purpose advertisement not specifically targeted at employees or other Persons described in Section 5(a)(ii)(A) or (y) soliciting or hiring any employee or other Person described in Section 5(a)(ii)(A) who is referred to Executive by search firms, employment agencies or other similar entities, provided that such firms, agencies or entities have not been instructed by Executive to solicit any such employee or Person or category thereof. The periods during which the provisions of Section 5(a) apply shall be tolled during (and shall be deemed automatically extended by) any period in which Executive is in violation of the provisions of this Section 5(a), to the extent permitted by law.
(b) The provisions of Section 5(a) shall not be deemed breached as a result of Executive’s passive ownership of: (i) less than an aggregate of 2% of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Executive agrees does not actively participate in the business of such Person; provided, however, that the Company’s and its Subsidiaries’ substantial investments such securities are listed on a national securities exchange; or (ii) less than an aggregate of 1% in its business interestsvalue of any instrument of indebtedness of a Person engaged, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to timedirectly or indirectly, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the CompanyCompetitive Activities.
(c) Notwithstanding Executive acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Executive acknowledges that Executive is being provided with significant additional consideration (to which Executive is not otherwise entitled) to induce Executive to enter into this Agreement. In light of the foregoing, and the above-referenced limitations Company’s and Executive’s mutual understanding that in the course of Executive’s duties with the Company he will acquire Confidential Information that would be of significant benefit to a subsequent employer that competes with the Company, Executive expressly acknowledges and agrees that each and every restraint imposed by this Agreement (specifically including Section 5(a)) is reasonable with respect to subject matter, time period and geographical area. Executive further acknowledges that although Executive’s compliance with the covenants contained in Sections 6(a)(i) 5, 6, 7, 8 and (ii) shall not apply 9 may prevent Executive from earning a livelihood in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition a business similar to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers business of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation experience and capabilities are such that Executive has other opportunities to earn a livelihood and adequate means of the covenants contained in this Section 6 will cause irreparable harm to the Company support for Executive and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at lawdependents.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Samples: Employment Agreement (Chicagoland Television News, LLC)
Noncompetition and Nonsolicitation. For a period of three years after the Effective Time (the "Term"):
(a) In consideration of the benefits to which the Executive may be entitled under the terms of this Agreement, the confidential information relating to the Company and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s employment with the Company (including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive Shareholder will not, directly or indirectly:
indirectly (including through a downstream Affiliate), engage or invest in, own (or have more than a 5% ownership interest in), manage, operate, control or participate in the management, operation, control of, any Person engaged in the Business anywhere within the Territory (a "Competing Activity"); provided, however, that a Competing Activity shall in no case include (i) carry on the performance by Shareholder of its obligations under the Commercial Agreements, (ii) the performance by Shareholder of its obligations related to retaining liability for the UAL Agreement, (iii) subject to Shareholder's obligations under the Commercial Agreements, Shareholder's or engage in Competitive Duties any of its Affiliates performing any agreement with a third party requiring Shareholder or such Affiliate to refer business to such third party that may compete with the Business or (iv) membership, participation (including as a director, employeeofficer, consultant, contractor committee or task force member or otherwise) within or an ownership interest in any debit card, ATM card, or credit card network (the Restricted Area for any Competing Businesspermitted activities set forth in clauses (i) and (ii) hereinafter being referred to as the "Commercial Activities" and the permitted activities set forth in clauses (i) through (iv) hereinafter being referred to as the "Permitted Activities");
(iib) solicit Other than with respect to the Permitted Activities, Shareholder will not, directly or indirectly (including through a downstream Affiliate), induce or assist another in soliciting) attempt to induce any Covered Customer or Prospective Customer for the purpose of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultantcustomer, supplier, licensee or vendor of the Company or any of its Subsidiaries, other Person to terminate, cease or lessen its relationship doing business with the Company or any of its SubsidiariesCompany Subsidiary or in any way interfere with the relationship between any such customer, supplier, licensee or other business entity and the Company or any Company Subsidiary; and
(Bc) on behalf Other than with respect to the Permitted Activities, Shareholder will not, directly or indirectly (including through a downstream Affiliate), solicit the business of any Person known to Shareholder to be a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant customer of the Company or any of its Subsidiaries Company Subsidiary, whether or not Shareholder or any person who was an employeesuch Affiliate had personal contact with such Person, contractor, with respect to products or consultant activities that compete in whole or in part with the Business. In the event of the Company a breach by Shareholder or any Affiliate thereof of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractors, or consultants of the Company or any of its Subsidiaries during the Executive’s employment with the Company).
(b) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments covenant set forth in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation the term of such agreements covenant will be extended by the Executive or others active on period of the Executive’s behalf, without any showing duration of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at lawsuch breach.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Noncompetition and Nonsolicitation. (a) In consideration of the benefits to which the Executive may be entitled under the terms of this Agreement, the confidential information relating to the Company and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s employment with the Company (including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will shall not, directly or indirectly, without the prior written consent of the Company:
(i) carry on (A) while an employee of the Company and during the 12-month period following termination of employment (the “Non-Compete Period”)
(i) engage in, provide services to (directly or indirectly), invest in or possess interest in, independently or with others, any Competitive Activities in any geographic location in which the Company, its subsidiaries or Affiliates engage in; or (ii) assist any Person in Competitive Duties (as a directorany way to do, employeeor attempt to do, consultant, contractor or otherwiseanything prohibited by Section 6(a)(i)(A)(i) within the Restricted Area for any Competing Business;above; or
(ii) solicit (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose while an employee of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with the Company and during the Non-Compete Period, knowingly perform any action, activity or its Subsidiaries, course of conduct which is substantially detrimental to the businesses or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor reputations of the Company or any of its Subsidiariessubsidiaries or Affiliates, to terminateincluding (A) soliciting, cease recruiting or lessen its relationship with the Company or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement hiring (or assist another in such activityattempting to solicit, recruit or hire) any employee, contractor or consultant employees of the Company or any of its Subsidiaries subsidiaries or Affiliates or Persons who have worked for the Company or any person who was an employee, contractor, of its subsidiaries or consultant Affiliates for a Competitive Activity; (B) intentionally interfering with the relationship of the Company or any of its Subsidiaries at subsidiaries or Affiliates with any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive Person who or which is employed by the Company for less than twelve (12) months, those persons who were employees, contractorsor otherwise engaged to perform services for, or consultants of any customer, client, supplier, licensee, licensor or other business relation of, the Company or any of its Subsidiaries subsidiaries or Affiliates; or (C) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 6(a)(iii)(A) or (B) above. The Non-Compete Period shall be tolled during (and shall be deemed automatically extended by) any period in which Executive is in violation of the Executive’s employment with the Companyprovisions of this Section 6(a).
(b) The provisions of Section 6(a) shall not be deemed breached as a result of Executive’s passive ownership of: (i) less than an aggregate of 5% of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Executive agrees does not actively participate in the business of such Person; provided, however, that the Company’s and its Subsidiaries’ substantial investments such stock is listed on a national securities exchange; or (ii) less than an aggregate of 5% in its business interestsvalue of any instrument of indebtedness of a Person engaged, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to timedirectly or indirectly, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the CompanyCompetitive Activities.
(c) Notwithstanding the foregoing, the aboveIf a final and non-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions appealable judicial determination is made that any of the Restricted Area located within the State provisions of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the caseconstitutes an unreasonable or otherwise unenforceable restriction against Executive, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation provisions of the covenants contained in this Section 6 will cause irreparable harm not be rendered void but will be deemed to be modified to the Company minimum extent necessary to remain in force and its Subsidiaries effect for the longest period and largest geographic area that monetary damages would not be sufficient remedy for constitute such an unreasonable or unenforceable restriction. Moreover, and without limiting the generality of Section 12, notwithstanding the fact that any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation provision of this Section 66 is determined to not be enforceable through specific performance, or both, or other appropriate judicial remedy, writ or order, in any court the Company will nevertheless be entitled to recover monetary damages as a result of competent jurisdiction, restraining any violation or further violation Executive’s breach of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at lawprovision.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Samples: Employment Agreement (Camping World Holdings, Inc.)
Noncompetition and Nonsolicitation. (a) In consideration During the Term and for 12 months after any termination of the benefits to which the Executive may be entitled under the terms of this Agreement, the confidential information relating to the Company and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the ExecutiveEmployee’s employment with the Company (including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or for any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will Employee shall not, directly or indirectly:
, through any affiliate or otherwise, anywhere in the United States, (i) carry on own, manage, market, operate, control, consult with, participate in, or engage be connected in Competitive Duties any manner with the ownership, management, operation, or control of any business that engages, directly or indirectly, in any business which is the same or similar to the Business (as a director, employee, consultant, contractor or otherwise) within the “Restricted Area for any Competing Business;
”); (ii) solicit (be or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducingbecome a stockholder, partner, owner, agent of, or attempting a consultant to induceor give financial or other assistance to, such Covered Customer any person considering engaging in or Prospective Customer to cease or reduce its business who is engaged in the Restricted Business; (iii) seek in competition with the Company or its Subsidiaries, or not Restricted Business to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor customer of the Company or any of its Subsidiariesaffiliates for which Seller has provided services in connection with the Restricted Business at any time; (iv) hire or engage as an employee, to terminateconsultant or contractor any person who is an employee, cease consultant or lessen its relationship with contractor of the Company or its affiliates; (v) seek to contract with or engage (in such a way as to materially adversely affect or interfere with the business of the Company or its affiliates) any person who has been contracted with or engaged to manufacture, assemble, supply, or provide products, goods, materials, or services to the Company or its affiliates; and (vi) engage in or participate in any effort or act to induce any of its Subsidiariesthe customers, suppliers, consultants, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant employees of the Company or any of its Subsidiaries or affiliates to take any person who was an employee, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive action which is employed by the Company for less than twelve (12) months, those persons who were employees, contractors, or consultants of the Company or any of its Subsidiaries during the Executive’s employment with the Company).
(b) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as materially disadvantageous to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive affiliates; provided, however, that nothing in this Agreement are shall prohibit Employee from owning, as a passive investor, not more than five percent of the outstanding publicly traded securities of any entity so engaged. The duration of Employee’s covenants set forth in addition to all other duties owed this Section shall be extended by the Executive a period of time equal to the Companynumber of days, includingif any, without limitation, fiduciary duties during which Employee is in violation of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Companyprovisions contained in this Agreement.
Appears in 1 contract
Samples: Employment Agreement (InfoLogix Inc)
Noncompetition and Nonsolicitation. You agree that you shall not, directly or indirectly, without the prior written consent of the Company:
(a) In consideration while an employee of the benefits to Company and during the one-year period following termination of employment, engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business), in any geographic location in which the Executive may be entitled under Company engages (or in which the terms Company has been actively planning to engage) as of this Agreementthe date of termination of your employment, the confidential information relating to that compete directly with the Company and its business previously provided to the Executivesubsidiaries, and the Company’s promise to provide the Executive with future confidential information during the course any other affiliates of the Executive’s employment with Company whose business is related to that of the Company (including new confidential in the business of television broadcasting, newspaper publishing, or other digital information provided to the Executive or entertainment services, or any other business in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not, directly or indirectly:
(i) carry on or engage in Competitive Duties (as a director, employee, consultant, contractor or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit affiliates is engaged (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor of which the Company or any of its Subsidiariesaffiliates has been actively planning to engage) at the time of termination (in all cases other than businesses that are immaterial to the Company), to terminateincluding any activities or businesses of the Company, cease its subsidiaries or lessen its relationship such affiliates that involve any person or entity with whom the Company has engaged in substantive dialogue at the time of termination of your employment regarding entry into a material business relationship (but only to the extent that a material business relationship is consummated with any such person or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant of the Company or any of its Subsidiaries or any person who was an employee, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last entity within twelve (12) months following the termination of your employment) (“Competitive Activities”), or assist any person or entity in any way to do, or attempt to do, anything prohibited by this Section 1(a): provided, however, that the foregoing shall not prevent you from providing services as a consultant, employee, advisor, or otherwise with a person or entity that engages in Competitive Activities, if such service relationship is restricted solely to one or more portions of the Executive’s employment with operations and businesses of such person or entity, such portions do not engage in Competitive Activities, and you undertake not to, and do not, have any discussions with, or participate in, the governance, management or operations of such person or entity or any business segments thereof that engage in Competitive Activities; or
(b) while an employee of the Company and during the one-year period following termination of employment for any reason, (orA) solicit, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractorsrecruit or hire, or consultants attempt to solicit, recruit or hire, any employees of the Company or any of its Subsidiaries persons who have worked for the Company during the Executive’s employment 12 month period immediately preceding such solicitation, recruitment or hiring or attempt thereof (other than your secretary/executive assistant); (B) intentionally interfere with the relationship of the Company with any person or entity who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, developer, subcontractor, licensee, licensor or other business relation of, the Company).
; or (bC) The Executive agrees assist any person or entity in any way to do, or attempt to do, anything prohibited by clause (A) or (B) above; provided that the Company’s and its Subsidiaries’ substantial investments preceding clause (A) shall not prohibit you from (x) conducting a general solicitation made by means of a general purpose advertisement not specifically targeted at employees or other persons or entities described in its business interestsclause (A) or (y) soliciting or hiring any employee or other person or entity described in clause (A) who is referred to you by search firms, goodwill and confidential information are worthy employment agencies or other similar entities, provided that such firms, agencies or entities have not been instructed by you to solicit any such employee or person or entity or category thereof. The periods during which the provisions of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than 1 apply shall be tolled during (and shall be deemed automatically extended by) any hardship period in which you are in violation of the Executive might experience provisions of this Section 1, to the extent permitted by complying with its termslaw. The Executive agrees provisions of Section 1 (a) shall not be deemed breached as a result of your passive ownership of; (i) less than an aggregate of 2% of any class of securities of an entity engaged, directly or indirectly, in Competitive Activities, so long as you do not actively participate in the business of such entity; provided, however, that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement such securities are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and listed on a national securities exchange; or (ii) shall not apply less than an aggregate of 1% in those portions value of the Restricted Area located within the State any instrument of Oklahoma. Insteadindebtedness of an entity engaged, the Executive agrees thatdirectly or indirectly, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliatesCompetitive Activities.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Noncompetition and Nonsolicitation. (a) In consideration of the benefits to which the Executive may be entitled under the terms of this Agreement, the confidential information relating to the Company and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s employment with the Company (including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will shall not, directly or indirectly, whether by Executive, through an Affiliate or in partnership or conjunction with, or as an employee, officer, director, manager, member, owner, consultant or agent of, any other Person:
(i) carry while an employee of the Company and during the period ending on the six (6) month anniversary of Executive’s date of termination of employment, engage, directly or engage indirectly, in Competitive Duties activities or businesses (as a directorincluding without limitation by owning any interest in, employeemanaging, consultantcontrolling, contractor participating in, consulting with, advising, rendering services for, or otherwisein any manner engaging in the business of owning, operating or managing any business) within the Restricted Area for United States (including its territories or possessions), and/or other territories (in which the Company, its Affiliates or Subsidiaries conduct business or are actively planning to conduct business as of Executive’s date of termination of employment) that competes or will compete in the United States and/or such other territories with the Company, its Subsidiaries or Affiliates (“Competitive Activities”) or any Competing Businessbusiness that acquires all or substantially all of the assets of, or is otherwise a successor to, the Company (an “Other Employing Entity”);
(ii) solicit while an employee of the Company and during the period ending on the eighteen (18) month anniversary of Executive’s date of termination of employment, solicit, entice, encourage or assist another in soliciting) intentionally influence, or attempt to solicit, entice, encourage or influence, any Covered Customer employee of, or Prospective Customer other Person who performs services for the purpose Company, any Other Employing Entity or any of inducing, their respective Affiliates or attempting Subsidiaries to induce, such Covered Customer resign or Prospective Customer to cease leave the employ or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor engagement of the Company or any of its their respective Affiliates or otherwise hire, employ, engage or contract any such employee or Person, or any other Person who provided services to the Company or any of their respective Affiliates during the six (6) months prior to such hiring, employment, engagement or contracting, to perform services other than for the benefit of the Company, any Other Employing Entity or any of their respective Affiliates or Subsidiaries, in each case other than in the fulfillment of Executive’s duties as Executive Vice President and Managing Director of the Company;
(iii) while an employee of the Company and during the period ending on the eighteen (18) month anniversary of Executive’s date of termination of employment, solicit, entice, encourage, influence, accept payment from, or provide services to, or attempt to terminatesolicit, cease entice, encourage, influence or lessen accept payment from, or assist any other Person, firm or corporation, directly or indirectly, in the solicitation of or providing services to, any Client (as defined below) or any Prospective Client (as defined below), or to alter, reduce or terminate its business relationship with the Company or any of its their respective Affiliates for the direct or indirect benefit of any competitor of the Company, any Other Employing Entity or any of their respective Affiliates or Subsidiaries, in each case other than in the fulfillment of Executive’s duties as Executive Vice President and Managing Director of the Company;
(iv) while an employee of the Company and during the period ending on the eighteen (18) month anniversary of Executive’s date of termination of employment, directly or indirectly request or advise any Client or Prospective Client to alter, reduce, terminate, withdraw, curtail, or cancel the Client’s or Prospective Client’s business with the Company, any Other Employing Entity or any of their respective Affiliates or Subsidiaries, in each case other than in the fulfillment of Executive’s duties as Executive Vice President and Managing Director of the Company; or
(Bv) while an employee of the Company and during the period ending on the eighteen (18) month anniversary of Executive’s date of termination of employment, solicit any agents, advisors, independent contractors or consultants of the Company, any Other Employing Entity or any of their respective Affiliates or Subsidiaries who are under contract or doing business with the Company, any Other Employing Entity or any of their respective Affiliates or Subsidiaries to terminate, reduce or divert business with or from the Company, any Other Employing Entity or any of their respective Affiliates or Subsidiaries, in each case other than in the fulfillment of Executive’s duties as Executive Vice President and Managing Director of the Company.
(vi) For purposes of this Agreement, “Client” means a Person to whom the Company, its Subsidiaries or Affiliates sold goods or provided services, and with whom Executive had contacts, dealings or client relationship responsibilities (either directly or indirectly through supervising other employees who had such responsibilities or otherwise in the course of performing the duties and responsibilities associated with his position) on behalf of a Competing Businessthe Company, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant of the Company Other Employing Entity or any of its Subsidiaries their respective Affiliates or any person who was an employeeSubsidiaries, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the while Executive is employed by the Company for less than twelve (12the “Look Back Period”) months, those persons who were employees, contractors, or consultants of (but if Executive is not employed by the Company or at the time of any of its Subsidiaries during activity described in Section 7(a)(iii) and 7(a)(iv), then the Look Back Period will not be longer than one (1) year prior to Executive’s employment with the Company).
last day of employment, and “Prospective Client” shall mean those Persons (bA) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments Company is actively soliciting or is planning to solicit; or (B) with whom Executive has met or with respect to which Executive has obtained Confidential Information in its business interests, goodwill and confidential information are worthy the course of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations or as a result of his performance of his duties to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Noncompetition and Nonsolicitation. You agree that you shall not, directly or indirectly, without the prior written consent of the Company:
(a) In consideration while an employee of the benefits to Company and during the one-year period following termination of employment, engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business), in any geographic location in which the Executive may be entitled under Company engages (or in which the terms Company has been actively planning to engage) as of this Agreementthe date of termination of your employment, the confidential information relating to that compete directly with the Company and its business previously provided to the Executivesubsidiaries, and the Company’s promise to provide the Executive with future confidential information during the course any other affiliates of the Executive’s employment with Company whose business is related to that of the Company (including new confidential in the business of television broadcasting, newspaper publishing, or other digital information provided to the Executive or entertainment services, or any other business in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not, directly or indirectly:
(i) carry on or engage in Competitive Duties (as a director, employee, consultant, contractor or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit affiliates is engaged (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor of which the Company or any of its Subsidiariesaffiliates has been actively planning to engage) at the time of termination (in all cases other than businesses that are immaterial to the Company), to terminateincluding any activities or businesses of the Company, cease its subsidiaries or lessen its relationship such affiliates that involve any person or entity with whom the Company has engaged in substantive dialogue at the time of termination of your employment regarding entry into a material business relationship (but only to the extent that a material business relationship is consummated with any such person or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant of the Company or any of its Subsidiaries or any person who was an employee, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last entity within twelve (12) months following the termination of your employment) (“Competitive Activities”), or assist any person or entity in any way to do, or attempt to do, anything prohibited by this Section 1(a); provided, however, that the foregoing shall not prevent you from providing services as a consultant, employee, advisor, or otherwise with a person or entity that engages in Competitive Activities, if such service relationship is restricted solely to one or more portions of the Executive’s employment with operations and businesses of such person or entity, such portions do not engage in Competitive Activities, and you undertake not to, and do not, have any discussions with, or participate in, the governance, management or operations of such person or entity or any business segments thereof that engage in Competitive Activities; or
(b) while an employee of the Company and during the one-year period following termination of employment for any reason, (orA) solicit, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractorsrecruit or hire, or consultants attempt to solicit, recruit or hire, any employees of the Company or any of its Subsidiaries persons who have worked for the Company during the Executive’s employment 12 month period immediately preceding such solicitation, recruitment or hiring or attempt thereof (other than your secretary/executive assistant); (B) intentionally interfere with the relationship of the Company with any person or entity who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, developer, subcontractor, licensee, licensor or other business relation of, the Company).
; or (bC) The Executive agrees assist any person or entity in any way to do, or attempt to do, anything prohibited by clause (A) or (B) above; provided that the Company’s and its Subsidiaries’ substantial investments preceding clause (A) shall not prohibit you from (x) conducting a general solicitation made by means of a general purpose advertisement not specifically targeted at employees or other persons or entities described in its business interestsclause (A) or (y) soliciting or hiring any employee or other person or entity described in clause (A) who is referred to you by search firms, goodwill and confidential information are worthy employment agencies or other similar entities, provided that such firms, agencies or entities have not been instructed by you to solicit any such employee or person or entity or category thereof. The periods during which the provisions of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than I apply shall be tolled during (and shall be deemed automatically extended by) any hardship period in which you are in violation of the Executive might experience provisions of this Section 1, to the extent permitted by complying with its termslaw. The Executive agrees provisions of Section l(a) shall not be deemed breached as a result of your passive ownership of: (i) less than an aggregate of 2% of any class of securities of an entity engaged, directly or indirectly, in Competitive Activities, so long as you do not actively participate in the business of such entity; provided, however, that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement such securities are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and listed on a national securities exchange; or (ii) shall not apply less than an aggregate of 1% in those portions value of the Restricted Area located within the State any instrument of Oklahoma. Insteadindebtedness of an entity engaged, the Executive agrees thatdirectly or indirectly, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliatesCompetitive Activities.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Noncompetition and Nonsolicitation. (ai) In consideration of the benefits to which the Executive may be entitled under the terms of this Agreement, the confidential information relating Subject to the Company provisions of Section 4(d)(iii) hereof, during his period of employment and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course thereafter for a Restricted Period of the Executive’s two years following termination of his employment with the Company (including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while he will not, directly or indirectly, on his own behalf or as a partner, owner, officer, director, stockholder, member, employee, agent or consultant of any other Person, within any state (including the District of Columbia), territory, possession or country where the Company conducts business during the Employment Period or during the Restricted Period:
(A) Own, manage, operate, control, be employed by, provide services as a consultant to, or otherwise participate in the ownership, management, operation, or control of, any Person engaged by in any activity competitive with the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not, directly or indirectly:
(i) carry on or engage in Competitive Duties (as a director, employee, consultant, contractor or otherwise) within the Restricted Area for any Competing BusinessAffiliates;
(iiB) solicit Engage in the business of providing goods or services that are the same as or similar to the goods or services of the Company or any of its Affiliates;
(C) Have any contact with any of the Company’s Customers or assist another in soliciting) any Covered Customer or Prospective Customer potential Customers for the purpose of inducing, soliciting or inducing (or attempting to solicit or induce) any of the Company’s Customers to discontinue or reduce its business with the Company, such Covered or any potential Customers not to conduct business with the Company, or any Customer or Prospective potential Customer to cease conduct business with or contract with any other Person that competes with the Company or its Affiliates; or
(D) Persuade or attempt to persuade any supplier, agent, broker, or contractor of the Company or any of its Affiliates to discontinue or reduce its business with the Company (or its Subsidiariesany prospective supplier, broker, agent, or not contractor to do refrain from doing business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with the Company or any of its SubsidiariesAffiliates.
(ii) Subject to the provisions of Section 4(d)(iii) hereof, during a Restricted Period of up to five years, the Executive agrees that he will not, directly or indirectly, on his own behalf or as a partner, owner, officer, director, stockholder, member, employee, agent or consultant of any other Person, within any state (including the District of Columbia), territory, possession or country where the Company conducts business during the Employment Period or during the Restricted Period solicit, hire, or (B) on behalf of a Competing Businessotherwise attempt to establish for any Person, engageany employment, employagency, consulting or solicit or contact for employment or engagement (or assist another in such activity) other business relationship with any employee, contractor Person who is an employee or consultant of the Company or any of its Subsidiaries or any person who was an employeeAffiliates, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractors, or consultants of the Company or any of its Subsidiaries during the Executive’s employment with the Company).
(b) The Executive agrees provided that the Company’s and its Subsidiaries’ substantial investments prohibition in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii4(d)(ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, bar the Executive agrees that, in addition to from soliciting or hiring any former employee or former consultant who at the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions time of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment such solicitation or other engagement hire had not been employed or engaged by the Company or any of its affiliates, and thereafter Affiliates for a period of twelve at least six (126) months immediately following months, or any other provider of services to the termination Company or any of its Affiliates, as long as such Person’s engagement by the Executive does not interfere or conflict with the provision of services to the Company or an Affiliate by such Person.
(iii) The parties hereto acknowledge and agree that, notwithstanding anything in Section 4(d)(i) or (ii) hereof the Executive may own or hold, solely as passive investments, securities of Persons engaged in any business that would otherwise be included in Section 4(d)(i) or (ii), as long as with respect to each such investment, the securities held by the Executive do not exceed five percent (5%) of the Executive’s employment for whatever reasonoutstanding securities of such Person and such securities are publicly traded and registered under Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”); provided, that in the case of investments otherwise permitted under this clause, the Executive will shall not be permitted to, directly solicit the sale of goodsor indirectly, servicesparticipate in, or a combination of goods and services from the established customers of the Companyattempt to influence, the Company’s subsidiaries management, direction or policies of (other than through the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope exercise of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made voting rights held by the Executive in this Agreement are in addition to all other duties owed by connection with such securities), or lend the Executive to the CompanyExecutive’s name to, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Companyany such Person.
Appears in 1 contract
Noncompetition and Nonsolicitation. (a) In consideration of the benefits to which the Executive may be entitled under the terms of this Agreement, the confidential information relating to During your Board service with the Company and its for the twelve (12) month period following the last day of your Board service with the Company (the “Specified Restricted Period”), you shall not, directly or indirectly, anywhere in the Restricted Territory (as defined below); perform any services for, engage with, advise or otherwise assist any business previously provided (whether person, entity, or otherwise) that develops, manufactures or markets any products, performs any services or engages in any research or development activities, that concern or relate to robotic floor care and/or robotic lawn mowing (the “Specified Prohibited Activity”).
(b) Subject to the Executiveclarifications and agreements set forth in Schedule A hereto, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s your employment with the Company (including new confidential information provided to and for the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately month period following the termination Separation Date (the “Competitor Restricted Period”), you shall not, directly or indirectly, anywhere in the Restricted Territory, engage in any business activity performed for or on behalf of (whether directly or indirectly) the Executive’s employment for whatever reasonbusinesses set forth on Schedule B hereto or any of their affiliates.
(c) During the Competitor Restricted Period, the Executive will you shall not, directly or indirectly:
i. Solicit, entice or attempt to persuade any employee or independent contractor of the Company (or any Company affiliate) to leave the Company (or any Company affiliate) for any reason, or otherwise participate in or facilitate the hire, directly or through another entity, of any person who is then employed or engaged by the Company (or by any Company affiliate); or
ii. Solicit or transact any business with any of the Customers of the Company (or any Company affiliate), in either case with the purpose or effect of (i) carry on competing with the Company (or engage in Competitive Duties (as a director, employee, consultant, contractor any Company affiliate) or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit (or assist another in soliciting) causing any Covered Customer or Prospective Customer for the purpose of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease reduce or reduce its terminate such Customer’s business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with the Company (or any Company affiliate). For purposes of its Subsidiariesthis Agreement, “Customers” shall mean (A) Company customers (or customers of any Company affiliate) and (B) on behalf of a Competing Businesscustomer prospects, engage, employ, but the latter ((B)) is limited to those customer prospects with whom or solicit which you had significant contact or contact for employment about whom or engagement (or assist another in such activity) any employee, contractor or consultant of the Company or any of its Subsidiaries or any person who was an employee, contractor, or consultant of the Company or any of its Subsidiaries at any time which you learned confidential information during the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractors, or consultants of the Company or any of its Subsidiaries during the Executive’s your employment with the Company).
(b) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Samples: Transitional Services and Separation Agreement (Irobot Corp)
Noncompetition and Nonsolicitation. (a) In consideration For purposes of the benefits to which the Executive may be entitled under the terms Sections 5, 6, 7, 8, 9, 10 and 11 of this Agreement, the confidential information relating references to the Company shall include its subsidiaries and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s employment with the Company Affiliates.
(including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the a) Executive agrees that Executive shall not, while employed or otherwise engaged by an employee of the Company or any of its affiliates, and thereafter for a during the one-year period of twelve (12) months immediately following the termination of employment (the Executive’s employment for whatever reason, the Executive will not“Restriction Period”), directly or indirectly, without the prior written consent of the Company:
(i) carry on or (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the world that are principally or primarily in the business of producing or distributing Spanish language media content, or owning or operating Hispanic television networks (“Competitive Duties Activities”) or (as a directorB) assisting any Person in any way to do, employeeor attempt to do, consultant, contractor or otherwiseanything prohibited by this Section 5(a)(i)(A) within the Restricted Area for any Competing Business;above; or
(ii) solicit perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company, including (A) soliciting, recruiting or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, hiring (or attempting to inducesolicit, such Covered Customer recruit or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraginghire) any employee, contractor, consultant, supplier, or vendor employees of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with Persons who have worked for the Company during the 12-month period immediately preceding such solicitation, recruitment or any of its Subsidiaries, hiring or attempt thereof; (B) on behalf of a Competing Business, engage, employ, soliciting or encouraging (or attempting to solicit or contact for employment or engagement (or assist another in such activityencourage) any employee, contractor or consultant employee of the Company or any to leave the employment of its Subsidiaries or any person who was an employee, contractor, or consultant the Company; (C) intentionally interfering with the relationship of the Company with any Person who or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive which is employed by the Company for less than twelve (12) months, those persons who were employees, contractorsor otherwise engaged to perform services for, or consultants any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 5(a)(ii)(A), (B) or (C) above. If Executive’s termination of employment is due solely to the expiration of the Company or Term as provided for in Section 1(a) and the parties hereto have not decided to renew the Term, the Restriction Period shall be reduced to the six-month period following termination of employment. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Executive is in violation of its Subsidiaries during the Executive’s employment with the Companyprovisions of this Section 5(a).
(b) The provisions of Section 5(a) shall not be deemed breached as a result of Executive’s passive ownership of less than an aggregate of 3% of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Executive agrees does not actively participate in the business of such Person; provided, however, that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 such stock is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Companylisted on a national securities exchange.
(c) Notwithstanding Without limiting the foregoinggenerality of Section 11, notwithstanding the fact that any provision of this Section 5 is determined not to be specifically enforceable, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions Company will nevertheless be entitled to recover monetary damages as a result of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions breach of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliatessuch provision.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Executive acknowledges that Executive is being provided with significant additional consideration (to which Executive is not otherwise entitled), including stock options and restricted stock, to induce Executive to enter into this Agreement. Executive expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Executive further acknowledges that although Executive’s violation or threatened or attempted violation of compliance with the covenants contained in this Section 6 will cause irreparable harm Sections 5, 6, 7, 8 and 9 may prevent Executive from earning a livelihood in a business similar to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach business of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty Executive’s experience and disclosure, which Executive acknowledges and agrees capabilities are attendant to the executive and managerial positions such that the Executive has held other opportunities to earn a livelihood and will hold with the Companyadequate means of support for Executive and Executive’s dependents.
Appears in 1 contract
Samples: Employment Agreement (Hemisphere Media Group, Inc.)
Noncompetition and Nonsolicitation. (a) In consideration of the benefits to which the The Executive may be entitled under the terms of this Agreement, the confidential information relating to the Company hereby covenants and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information agrees that during the course of Term and for the Executive’s employment with respective periods set forth below immediately following the Company (including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed or otherwise engaged termination by the Company or any the Executive, as applicable, of its affiliateshis employment under the respective circumstances set forth below he shall not, and thereafter for a period of twelve (12) months immediately following without the termination prior written consent of the Executive’s employment for whatever reasonBoard, the Executive will notat any time, directly or indirectly, on his own behalf or on behalf of any Person:
(i) carry on own, manage, operate, control, be employed by, participate in, provide consulting services to, or engage be connected or associated in Competitive Duties any manner with the ownership, management, operation or control of any business which is in competition with the Company (in the business in which the Company is substantially engaged during the Term in the case of acts committed during the Term or in the business in which the Company is substantially engaged at the time of termination of Executive's Employment in the case of acts committed after the Term) or any of its Affiliates in any state of the United States or in any foreign country in which any of them are engaged in business during the Term in the case of acts committed during the Term or in any state of the United States or in any foreign country in which any of them are engaged in business at the time of termination of Executive's employment in the case of acts committed after the Term for as a director, employee, consultant, contractor or otherwise) within long as the Restricted Area for any Competing Business;Company continues to conduct such business (the "Non-Compete"),
(ii) solicit (or assist another in soliciting) take any Covered Customer or Prospective Customer for action to cause the purpose of inducingsolicitation of, or attempting to inducerecommend that, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiariesany supplier, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employeeclient, customer, contractor, consultantvendor, supplier, or vendor of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with the Company or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor agent or consultant of the Company or any of its Subsidiaries Affiliates or any person who was an employeeother Person having business relations with the Company, contractordiscontinue business or cease such relationship, in whole or consultant of in part, with the Company or any of its Subsidiaries at any time during Affiliates (the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractors, or consultants of the Company or any of its Subsidiaries during the Executive’s employment with the Company"Customer Non-Solicit").,
(biii) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than employ any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement Person employed by the Company or any of its affiliatesAffiliates at the time of, and thereafter for a period of twelve (12) or during the 12 months immediately following the preceding, such termination of the Executive’s 's employment with the Company (the "Non-Hire") or
(iv) solicit for whatever reason, employment (other than through unaffiliated employment recruiting or placement firms or services who are not specifically directed to solicit employees of the Executive will not directly solicit Company or provided with the sale names of goods, servicesany such employees) any Person employed by the Company or any of its Affiliates at the time of, or a combination during the 12 months preceding such termination of goods and services from the established customers of Executive's employment with the Company, or otherwise encourage or entice any such Person to leave such employment (the Company’s subsidiaries or "Employee Non-Solicit"), provided, however, that nothing in this Agreement shall preclude the Company’s affiliates.executive from owning less than five percent of any class of publicly traded equity of any entity Customer Employee Reason for Termination Non-Compete Non-Solicit Non-Hire Non-Solicit ---------------------- ----------- ----------- -------- ----------- Good Reason 1/2 year 1 1/2 years 1 1/2 years 1 1/2 years For Cause other than 2 years 1 1/2 years 1 1/2 years 1 1/2 years Non-Performance For Non-Performance 1/2 year 1 1/2 years 1 1/2 years 1 1/2 years Company Termination 0 years 1 1/2 years 1 1/2 years 1 1/2years for other than Cause and Disability Voluntary Resignation not for 1 year 1 1/2 years 1 1/2 years 1 1/2 years Good Reason Company Failure to Renew 0 years 1 1/2 years 1 1/2 years 1 1/2 years Executive Failure to Renew 0 years 1 1/2 years 1 1/2 years 1 1/2 years Disability 0 years 1 1/2 years 1 1/2 years 1 1/2 years
(db) Although The Employee acknowledges and agrees that
(i) the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained restrictive covenants set forth in this Section 6 8 (the "Restrictive Covenants") are reasonable and do not impose a greater restraint than necessary valid in geographical and temporal scope and in all other respects, and
(ii) it is the intention of the parties hereto that the Restrictive Covenants be enforceable to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interestsfullest extent permitted by applicable law. Therefore, if this any court determines that any of the Restrictive Covenants, or any part thereof, is judicially determined not to be the caseinvalid or unenforceable, the Company remainder of the Restrictive Covenants shall not thereby be affected and the Executive specifically agree that the limitations contained in this Agreement shall be reformed given full force and effect, without regard to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation invalid or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sectionsunenforceable parts. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this AgreementSpecifically, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in if any court of competent jurisdictionjurisdiction should hold that any portion of the Restrictive Covenants is overly broad as to one or more states of the United States or one or more foreign jurisdictions, restraining any violation then that state or further violation states or foreign jurisdiction or jurisdictions shall be eliminated from the territory to which the Restrictive Covenants apply and the restrictions shall remain applicable in all other states of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm United States and without any showing that the Company or its Subsidiaries do not have an adequate remedy at lawforeign jurisdictions.
(fc) The covenants made by If any court determines that any of the Executive Restrictive Covenants, or any part thereof, is invalid or unenforceable for any reason, such court shall have the power to modify such Restrictive Covenant, or any part thereof, and, in this Agreement are in addition to all other duties owed by the Executive to the Companyits modified form, including, without limitation, fiduciary duties of loyalty such restrictive covenant shall then be valid and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Companyenforceable.
Appears in 1 contract
Noncompetition and Nonsolicitation. (a) In consideration For purposes of the benefits to which the Executive may be entitled under the terms Sections 4, 5, 6, 7, 8, 9 and 10 of this Agreement, the confidential information relating references to the Company shall include its subsidiaries and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s employment with the Company Affiliates.
(including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the a) Executive agrees that Executive shall not, while employed or otherwise engaged by an employee of the Company or any of its affiliates, and thereafter for a period of during the twelve (12) months immediately month period following the termination of the Executive’s employment for whatever reason(such collective duration, the Executive will not“Restriction Period”), directly or indirectly, without the prior written consent of the Company:
(i) carry on or engage in Competitive Duties (as a director, employee, consultant, contractor or otherwise) within the Restricted Area for any Competing Business;
(ii) solicit (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage engage in activities or businesses (or assist another in encouraging) including without limitation by owning any employeeinterest in, contractormanaging, consultantcontrolling, supplierparticipating in, consulting with, advising, rendering services for, or vendor in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses of the Company or any of its Subsidiaries, to terminate, cease subsidiaries or lessen its relationship with controlled affiliates or any entity owned by the Company or any of its Subsidiaries, (“Competitive Activities”) or (B) on behalf of a Competing Business, engage, employassisting any Person in any way to do, or solicit attempt to do, anything prohibited by this Section 4(a)(i)(A) above; or
(ii) perform any action, activity or contact for employment course of conduct which is substantially detrimental to the businesses or engagement business reputations of the Company and involves
(A) soliciting, recruiting or hiring (or assist another in such activityattempting to solicit, recruit or hire) any employee, contractor or consultant employees of the Company or any of its Subsidiaries or any person Persons who was an employee, contractor, or consultant of have worked for the Company or any of its Subsidiaries at any time during the last twelve (12) months month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Executive’s Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company (or, if the Executive with any Person who or which is employed by the Company for less than twelve (12) months, those persons who were employees, contractorsor otherwise engaged to perform services for, or consultants any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 4(a)(ii)(A), (B) or (C) above. The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Executive is in violation of the Company or any provisions of its Subsidiaries during the Executive’s employment with the Company)this Section 4(a) unless provided below.
(b) The provisions of Section 4(a) shall not be deemed breached as a result of Executive’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Executive agrees does not actively participate in the business of such Person; provided, however, that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need such stock is listed on a national securities exchange (for the protection afforded sake of clarity, Executive shall remain bound by the other restrictive covenants in this agreement, including but not limited to Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Companyhereof).
(c) Notwithstanding the foregoingfact that any provision of this Section 4 is determined not to be specifically enforceable, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions Company may nevertheless be entitled to recover monetary damages as a result of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions material breach of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliatessuch provision.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill. Executive acknowledges that Executive is being provided with significant additional consideration (to which Executive is not otherwise entitled), including stock options and restricted stock, to induce Executive to enter into this Agreement. Executive expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Executive further acknowledges that although Executive’s violation or threatened or attempted violation of compliance with the covenants contained in this Section 6 will cause irreparable harm Sections 4, 5, 6, 7 and 8 may prevent Executive from earning a livelihood in a business similar to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach business of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty Executive’s experience and disclosure, which Executive acknowledges and agrees capabilities are attendant to the executive and managerial positions such that the Executive has held other opportunities to earn a livelihood and will hold with the Companyadequate means of support for Executive and Executive’s dependents.
Appears in 1 contract
Samples: Employment Agreement (Infrastructure & Energy Alternatives, Inc.)
Noncompetition and Nonsolicitation. (ai) In consideration From the date of this Agreement through the date that is one year after the Director Term Expiration Date (the “Restricted Period”), and within the United States, Executive shall not, directly or indirectly, without the prior written consent of the benefits to Company, engage in or invest as an owner, partner, stockholder, licensor, lender, director, officer, agent or consultant for, or become employed by, any person that conducts a business that competes with a business then conducted by the Company or any of its affiliates in any geographic area in which the Company was engaged in operations or exploration activities as of the Director Term Expiration Date; provided, however, that this provision shall not prevent Executive may be entitled under from (A) passively investing as a less than two percent stockholder in the terms securities of this Agreementany company listed on a national securities exchange or quoted on an automated quotation system, or (B) serving on the confidential information relating to board of another oil and gas exploration and production company, or in an advisory capacity with such a company or a financial entity that invests in such companies, with the Company and its business previously provided to the Executive, and written consent of the Company’s promise to provide the Chief Executive with future confidential information during the course Officer, Lead Director, Chairman of the Board, Audit Committee Chair or Compensation Committee Chair, which consent may be conditioned on Executive’s employment recusal of himself from discussions that may be competitive with the Company or other similar restrictions.
(including new confidential information provided to ii) During the Restricted Period, Executive in connection withshall not, and as a result ofdirectly or indirectly, without the Merger), and so as to protect such confidential information and prior written consent of the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build solicit, recruit or hire any person who is at such time, or who at any time during the Executive’s employment)three-month period prior to such solicitation or hiring had been, the Executive agrees that while employed a director, officer, or otherwise engaged by employee of the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not, directly or indirectly:
(i) carry on or engage in Competitive Duties (as a director, employee, consultant, contractor or otherwise) within the Restricted Area for encourage any Competing Business;
(ii) solicit (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, or attempting such person to induce, such Covered Customer or Prospective Customer to cease terminate or reduce its business his or her relationship with the Company or its Subsidiariesaffiliates; provided, or however, that this provision shall not to do business with prevent Executive from making general employment solicitations not targeted at personnel of the Company or its Subsidiaries; oraffiliates, such as job postings on websites or in newspapers or magazines of general circulation.
(iii) (A) encourage (or assist another in encouraging) In the event that a court of competent jurisdiction determines that any employee, contractor, consultant, supplier, or vendor of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with the Company or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit or contact for employment or engagement (or assist another in such activity) any employee, contractor or consultant of the Company or any of its Subsidiaries or any person who was an employee, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractors, or consultants of the Company or any of its Subsidiaries during the Executive’s employment with the Company).
(b) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter for a period of twelve (12) months immediately following the termination of the Executive’s employment for whatever reason, the Executive will not directly solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company, the Company’s subsidiaries or the Company’s affiliates.
(d) Although the Company and the Executive believe the limitations as to time, geographic area, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceable.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation provision of this Section 6, 3(b) is invalid or both, or other appropriate judicial remedy, writ or order, in any court more restrictive than permitted under the governing law of competent such jurisdiction, restraining any violation or further violation then, only as to enforcement of this Section 3(b) within the jurisdiction of such agreements by court, such provision shall be interpreted and enforced as if it provided for the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at maximum restriction permitted under such governing law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
Noncompetition and Nonsolicitation. (a) In consideration of the benefits to which the Executive may be entitled under the terms of this Agreement, the confidential information relating to the Company and its business previously provided to the Executive, and the Company’s promise to provide the Executive with future confidential information during the course of the Executive’s employment with the Company (including new confidential information provided to the Executive in connection with, and as a result of, the Merger), and so as to protect such confidential information and the Company’s legitimate business interests (including the goodwill with which the Executive will be associated, and that the Executive will help build during the Executive’s employment), the Executive agrees that while employed during ---------------------------------- the Term (as defined in Section 2 below) of this Agreement (and in the case of termination pursuant to Section 5 below for a period of one year thereafter), Executive will neither directly nor indirectly engage in a business competing with any of the businesses conducted by the Company or any of its subsidiaries or affiliates as of the date of such termination, nor without the prior written consent of the Company directly or indirectly have any interest in, own, manage, operate, control, be connected with as a stockholder, joint venturer, officer, employee, partner or consultant, or otherwise engaged engage, invest or participate in any business that is competitive with any of the businesses conducted by the Company or by any subsidiary or affiliate of the Company; provided, however, that nothing contained in this section 1.3 shall prevent Executive from investing or trading in stocks, bonds, commodities, securities, real estate or other forms of investment for Executive's own account and benefit (directly or indirectly), up to a maximum of 5% of the total equity or voting power of such entity, so long as such investment activities do not significantly interfere with Executive's services to be rendered hereunder and are consistent with the conflict of interest policies maintained by the Company from time to time. Executive further agrees that (i) during the Term of this Agreement and for a period of one year thereafter Executive will not on his own behalf or on behalf of any person or entity, directly or indirectly, hire or solicit the employment of any employee who is employed by the Company or any of its affiliates, subsidiaries or divisions as of the date of such termination and thereafter (ii) for a period of twelve (12) months immediately following one year after the termination Term of the Executive’s employment for whatever reasonthis Agreement, the Executive will not, directly or indirectly:
(i) carry on or engage in Competitive Duties (as a director, employee, consultant, contractor or otherwise) within the Restricted Area for have any Competing Business;
(ii) solicit (or assist another in soliciting) any Covered Customer or Prospective Customer for the purpose of inducing, or attempting to induce, such Covered Customer or Prospective Customer to cease or reduce its business with the Company or its Subsidiaries, or not to do business with the Company or its Subsidiaries; or
(iii) (A) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor of the Company or any of its Subsidiaries, to terminate, cease or lessen its relationship with the Company or any of its Subsidiaries, or (B) on behalf of a Competing Business, engage, employ, or solicit business-related dealings or contact for employment with any clients, suppliers, distributors or engagement (or assist another in such activity) any employee, contractor or consultant vendors of the Company or any of its Subsidiaries or any person who was an employee, contractor, or consultant of the Company or any of its Subsidiaries at any time during the last twelve (12) months of the Executive’s employment with the Company (or, if the Executive is employed by the Company for less than twelve (12) months, those persons who were employees, contractors, or consultants of the Company or any of its Subsidiaries during the Executive’s employment with the Company).
(b) The Executive agrees that the Company’s and its Subsidiaries’ substantial investments in its business interests, goodwill and confidential information are worthy of protection and that the Company’s and its Subsidiaries’ need for the protection afforded by this Section 6 is greater than any hardship the Executive might experience by complying with its terms. The Executive agrees that the limitations as to time, geographic area, and scope of activity to be restrained contained in this Agreement are reasonable and are not greater than necessary to protect the confidential information, good-will and other legitimate business interests of the Company.
(c) Notwithstanding the foregoing, the above-referenced limitations in Sections 6(a)(i) and (ii) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, the Executive agrees that, in addition to the limitations in Section 6(a)(iii), the restrictions on the Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma shall be as follows: during the Executive’s employment or other engagement by the Company or any of its affiliates, and thereafter subsidiaries or divisions, for a period or on behalf of twelve (12) months immediately following the termination any business that is competitive with any of the Executive’s employment for whatever reason, businesses conducted by the Executive will not directly solicit the sale of goods, services, Company or a combination of goods and services from the established customers by any subsidiary or affiliate of the Company, Company at the Company’s subsidiaries conclusion of the Term or which adversely effects the Company’s affiliates.
(d) Although relationship between the Company and the Executive believe the limitations as to timeany such client, geographic areasupplier, and scope of activity contained in this Section 6 are reasonable and do not impose a greater restraint than necessary to protect the Company’s and its Subsidiaries’ confidential information and legitimate business interests, if this is judicially determined not to be the case, the Company and the Executive specifically agree that the limitations contained in this Agreement be reformed to the extent necessary to make this Agreement enforceabledistributor or vendor.
(e) The Executive acknowledges that the Executive’s violation or threatened or attempted violation of the covenants contained in this Section 6 will cause irreparable harm to the Company and its Subsidiaries and that monetary damages would not be sufficient remedy for any breach of these sections. The Executive agrees that the Company and its Subsidiaries shall be entitled as a matter of right to specific performance of the covenants in this Agreement, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by the Executive or others active on the Executive’s behalf, without any showing of irreparable harm and without any showing that the Company or its Subsidiaries do not have an adequate remedy at law.
(f) The covenants made by the Executive in this Agreement are in addition to all other duties owed by the Executive to the Company, including, without limitation, fiduciary duties of loyalty and disclosure, which Executive acknowledges and agrees are attendant to the executive and managerial positions that the Executive has held and will hold with the Company.
Appears in 1 contract
