Noncompetition Nonsolicitation and Nondisparagement. The Executive acknowledges and agrees with the Company that, during the course of the Executive's employment with the Company, the Executive has had and will continue to have the opportunity to develop relationships with existing employees, customers and other business associates of the Company, which relationships constitute goodwill of the Company, and the Executive acknowledges and agrees that the Company would be irreparably damaged if the Executive were to take actions that would damage or misappropriate such goodwill. The Executive accordingly covenants and agrees as follows: (a) The Executive acknowledges that the Company currently conduct throughout the United States (the "Territory") the business of direct marketing merchandise and membership services including without limitation customer segmentation and modeling (the "Subject Business"). Accordingly, in consideration of the covenants of the Company pursuant to this Agreement, from the date hereof until the first anniversary of the Termination Date (the "Noncompete Period"), the Executive shall not, directly or indirectly, enter into, engage in, assist, give or lend funds to or otherwise finance, be employed by or consult with, or have a financial or other interest in, any business which engages in the Subject Business and markets programs, products or services similar to those of the Company as of the Termination Date, whether for or by himself or as an independent contractor, agent, stockholder, partner or joint venturer for any other Person, provided that the aggregate ownership by the Executive of no more than two percent of the outstanding equity securities of any Person, which securities are traded on a national or foreign securities exchange, quoted on the Nasdaq Stock Market or other automated quotation system shall not be deemed to be giving or lending funds to, otherwise financing or having a financial interest in a competitor. In the event that any Person in which the executive has any financial or other interest directly or indirectly enters into the Subject Business in the Territory during the Noncompete Period, the Executive shall divest all of his interest (other than any amount permitted under this paragraph) in such Person within 30 days after such Person enters into the Subject Business in the Territory. (b) The Executive covenants and agrees that during the period commencing with the date of this Agreement and ending on the first anniversary of the Termination Date, the Executive will not, directly or indirectly, either for himself or for any other Person (i) solicit any employee of the Company to terminate his or her employment with the Company or employ any such individual during his or her employment with the Company and for a period of six months after such individual terminates employment with the Company, (ii) solicit any supplier to the Company as of the Termination Date to purchase or distribute information, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by the Company, or (iii) make any disparaging statements concerning the Company or its officers, directors or employees, to any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of the Company, as such relationship relates to the Company's conduct of the Subject Business. (c) The Executive understands that the foregoing restrictions may limit the Executive's ability to earn a livelihood in a business similar to the business of the Company, but the Executive nevertheless believes that the Executive has received and will receive sufficient consideration and other benefits as an employee of the Company and as otherwise provided hereunder to clearly justify such restrictions which, in any event (given the Executive's education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.
Appears in 4 contracts
Samples: Change of Control, Confidentiality and Noncompete Agreement (Provell Inc), Change of Control, Confidentiality and Noncompete Agreement (Damark International Inc), Change of Control, Confidentiality and Noncompete Agreement (Damark International Inc)
Noncompetition Nonsolicitation and Nondisparagement. The Executive acknowledges and agrees with the Company that, during the course of the Executive's employment with the Company, the Executive has had and will continue to have the opportunity to develop relationships with existing employees, customers and other business associates of the Company, which relationships constitute goodwill of the Company, and the Executive acknowledges and agrees that the Company would be irreparably damaged if the Executive were to take actions that would damage or misappropriate such goodwill. The Executive accordingly covenants and agrees as follows:
(a) The Executive acknowledges that the Company currently conduct throughout the United States (the "Territory") the business of direct marketing of merchandise and membership services services, including without limitation customer segmentation and modeling (the "Subject Business"). Accordingly, in consideration of the covenants of the Company pursuant to this Agreement, from the date hereof until the first second anniversary of the Termination Date (the "Noncompete Period"), the Executive shall not, directly or indirectly, enter into, engage in, assist, give or lend funds to or otherwise finance, be employed by or consult with, or have a financial or other interest in, any business which engages in the Subject Business and markets programs, products or services similar to those of the Company as of the Termination Date, whether for or by himself or as an independent contractor, agent, stockholder, partner or joint venturer for any other Personperson, provided that the aggregate ownership by the Executive of no more than two percent of the outstanding equity securities of any Person, which securities are traded on a national or foreign securities exchange, quoted on the Nasdaq Stock Market or other automated quotation system shall not be deemed to be giving or lending funds to, otherwise financing or having a financial interest in a competitor. In the event that any Person in which the executive has any financial or other interest directly or indirectly enters into the Subject Business in the Territory during the Noncompete Period, the Executive shall divest all of his interest (other than any amount permitted under this paragraph) in such Person within 30 days after such Person enters into the Subject Business in the Territory.
(b) The Executive covenants and agrees that during the period commencing with the date of this Agreement and ending on the first third anniversary of the Termination Date, the Executive will not, directly or indirectly, either for himself or for any other Person (i) solicit any employee of the Company to terminate his or her employment with the Company or employ any such individual during his or her employment with the Company and for a period of six months after such individual terminates employment with the Company, (ii) solicit any supplier to the Company as of the Termination Date to purchase or distribute supply information, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by the Company, or (iii) make any disparaging statements concerning the Company or its officers, directors or employees, to any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of the Company, as such relationship relates to the Company's conduct of the Subject Business.
(c) The Executive understands that the foregoing restrictions may limit the Executive's ability to earn a livelihood in a business similar to the business of the Company, but the Executive nevertheless believes that the Executive has received and will receive sufficient consideration and other benefits as an employee of the Company and as otherwise provided hereunder to clearly justify such restrictions which, in any event (given the Executive's education, skills and ability), the Executive does not believe would prevent him the Executive from otherwise earning a living.
Appears in 2 contracts
Samples: Severance, Confidentiality and Noncompete Agreement (Damark International Inc), Severance, Confidentiality and Noncompete Agreement (Damark International Inc)
Noncompetition Nonsolicitation and Nondisparagement. The Executive Stockholder acknowledges and agrees with the Company that, that during the course of the ExecutiveStockholder's ownership and/or employment with the CompanyBusiness, the Executive Stockholder has had and will continue to have the opportunity to develop relationships with existing employees, customers and other business associates of the CompanyBusiness, which relationships constitute goodwill of the Business being acquired by the Company, and the Executive Stockholder acknowledges and agrees that the Company would be irreparably damaged if the Executive Stockholder were to take actions that would damage or misappropriate such goodwill. The Executive Stockholder accordingly covenants and agrees as follows:
(a) 3.1 The Executive Stockholder acknowledges that the Company Business is currently conduct conducted throughout the United States (World and that the "Territory") Company has plans to expand the Business to take advantage of synergies between the Business and the Company's medical billing/physician practice management services business and of direct marketing merchandise and membership services including without limitation customer segmentation and modeling (other opportunities to expand the "Subject Business"). Accordingly, in consideration of the covenants of Company closing the Company pursuant to this transactions contemplated by the Purchase Agreement, from the date hereof until the first fifth anniversary of the Termination Date date hereof (the "Noncompete Restricted Period"), the Executive Stockholder shall not, directly or indirectly, enter into, engage in, assist, give or lend funds to or otherwise finance, be employed by or consult with, have an ownership or equity interest in, or have a financial or other interest in, any business which engages in the Subject Business and markets programs, products or services similar to those any aspect of the Company as of the Termination DateRestricted Business, whether for or by himself or as an independent contractor, agent, stockholder, partner or joint venturer for any other Person, provided that the aggregate ownership by the Executive Stockholder of no more than two percent of the outstanding equity securities of any Person, which securities are traded on a national or foreign securities exchange, quoted on the Nasdaq Stock Market or other automated quotation system shall not be deemed to be giving or lending funds to, otherwise financing or having a financial interest in a competitor. In the event that any Person in which the executive Stockholder has any financial or other interest directly or indirectly enters into the Subject Restricted Business in the Territory during the Noncompete Restricted Period, the Executive Stockholder shall divest all of his interest (other than any amount permitted under this paragraph) in such Person within 30 days after such Person enters into any aspect of the Subject Restricted Business. Notwithstanding any of the terms and conditions of this paragraph, or this Agreement as read in its entirety, the Stockholder will not be prevented from serving as an officer, director, control person or beneficial owner of Northeast Medical Business in Group, Inc., nor will the TerritoryStockholder be precluded from owning up to one hundred percent (100%) of the preferred and/or common equity of said entity.
(b) 3.2 The Executive Stockholder covenants and agrees that that, during the period commencing with the date of this Agreement and ending on the first anniversary of the Termination DateRestricted Period, the Executive Stockholder will not, directly or indirectly, either for himself or for any other Person (i) solicit any employee of the Company to terminate his or her employment with the Company or employ any such individual during his or her employment with the Company and for a period of six months after such individual terminates employment with the Company, (ii) solicit any supplier to the Company as of the Termination Date to purchase or distribute information, products or services of or on behalf of the Executive Stockholder or such other Person that are competitive with the information, products or services provided by the Company, or (iii) make take any action, including without limitation the making of disparaging statements concerning the Company or its officers, directors or employees, that is reasonably likely to cause injury to the relationships between the Company or any of its employees and any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of the Company, as such relationship relates to the Company's conduct of the Subject Restricted Business.
(c) 3.3 The Executive Stockholder understands that the foregoing restrictions may limit the ExecutiveStockholder's ability to earn a livelihood in a business similar to the business of the CompanyRestricted Business, but the Executive Stockholder nevertheless believes that the Executive Stockholder has received and will receive sufficient consideration and other benefits as an employee a result of the Company and as otherwise provided hereunder closing of the transactions contemplated by the Purchase Agreement to clearly justify such restrictions which, in any event (given the ExecutiveStockholder's education, skills and ability), the Executive Stockholder does not believe would prevent him from otherwise earning a living.
Appears in 2 contracts
Samples: Non Competition, Confidentiality and Non Solicitation Agreement (Acadia National Health Systems Inc), Non Competition, Confidentiality and Non Solicitation Agreement (Acadia National Health Systems Inc)
Noncompetition Nonsolicitation and Nondisparagement. The Executive acknowledges and agrees with In consideration for the Company thatentering into this Agreement, during the course Employment Term and during the two-year period following termination of the Executive's employment with the Company, the Executive has had and will continue to have the opportunity to develop relationships with existing employees, customers and other business associates of the Company, which relationships constitute goodwill of the Company, and the Executive acknowledges and agrees that the Company would be irreparably damaged if the Executive were to take actions that would damage or misappropriate such goodwill. The Executive accordingly covenants and agrees as follows:
(a) The Executive acknowledges that the Company currently conduct throughout the United States (the "Territory") the business of direct marketing merchandise and membership services including without limitation customer segmentation and modeling (the "Subject Business"). Accordingly, in consideration of the covenants of the Company pursuant to this Agreement, from the date hereof until the first anniversary of the Termination Date (the "Noncompete Period"), the Executive shall not, directly or indirectly, enter into, engage in, assist, give or lend funds to or otherwise finance, be employed by or consult with, or have a financial or other interest in, any business which engages in the Subject Business and markets programs, products or services similar to those of the Company as of the Termination Date, whether for or by himself or as an independent contractor, agent, stockholder, partner or joint venturer for any other Person, provided that the aggregate ownership by the Executive of no more than two percent of the outstanding equity securities of any Person, which securities are traded on a national or foreign securities exchange, quoted on the Nasdaq Stock Market or other automated quotation system shall not be deemed to be giving or lending funds to, otherwise financing or having a financial interest in a competitor. In the event that any Person in which the executive has any financial or other interest directly or indirectly enters into the Subject Business in the Territory during the Noncompete Period, the Executive shall divest all of his interest (other than any amount permitted under this paragraph) in such Person within 30 days after such Person enters into the Subject Business in the Territory.
(b) The Executive covenants and agrees that during the period commencing with the date of this Agreement and ending on the first anniversary of the Termination Date, the Executive will not, directly or indirectly, either contact any supplier or prospective supplier of the Company with whom the Executive has had contact on behalf of the Company during the two-year period preceding the date of such termination so as to cause or attempt to cause such supplier or prospective supplier of the Company not to do business or to reduce or limit such supplier's business with the Company or divert any business from the Company.
(b) The Executive will not, directly or indirectly, own more than five percent (5%) of, or act as an officer, director, partner, principal, employee, agent, representative, advisor, consultant or independent contractor of, or in any way assist, whether or not for himself consideration, any business, incorporated or for otherwise, which is engaged, directly or indirectly, in the retail sale of a diversified offering of apparel and household goods, the retail sale of a diversified offering of discount household goods, the retail sale of health, hygiene or prescriptive products, or the retail sale of grocery products and which engages in business within, or is located within, any state in which the Company's business generated more than $30 million in revenues in the fiscal year preceding the termination of the Executive's employment with the Company. The Executive acknowledges that the scope of this limitation is reasonable in that, among other Person things, providing any such services or assistance during such two-year period would permit the Executive to use unfairly his close identification with the Company and the supplier contacts the Executive developed while employed by the Company and would involve the use or disclosure of Confidential Information pertaining to the Company.
(ic) solicit The Executive will not, directly or indirectly, induce, solicit, entice or procure any person who is a management or exempt employee of the Company Company, or has been such a management or exempt employee within the six months preceding such contact by the Executive, to terminate his or her employment with the Company or employ any such individual during his or her so as to accept employment with the Company and for a period of six months after such individual terminates employment with the Companyany person, (ii) solicit any supplier to the Company as of the Termination Date to purchase or distribute informationcompany, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by the Companybusiness entity, or other organization whatsoever.
(iiid) make The Executive, except as may be required by legal process, will refrain from making any disparaging statements concerning written or oral statement, publicly or privately, which disparages the Company or its officers, current or former directors or employees.
(e) The Company (by and through its executive officers and directors), to except as may be required by law or by the rules of any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of the Company, as such relationship relates to stock exchange on which the Company's conduct of the Subject Business.
(c) The Executive understands that the foregoing restrictions may limit securities trade, will refrain from making any written or oral statement, publicly or privately, which disparages the Executive's ability to earn a livelihood in a business similar to the business of the Company, but the Executive nevertheless believes that the Executive has received and will receive sufficient consideration and other benefits as an employee of the Company and as otherwise provided hereunder to clearly justify such restrictions which, in any event (given the Executive's education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.
Appears in 1 contract
Noncompetition Nonsolicitation and Nondisparagement. The Executive acknowledges and agrees with the Company that, during the course of the Executive's employment with the Company, the Executive has had and will continue to have the opportunity to develop relationships with existing employees, customers and other business associates of the Company, which relationships constitute goodwill of the Company, and the Executive acknowledges and agrees that the Company would be irreparably damaged if the Executive were to take actions that would damage or misappropriate such goodwill. The Executive accordingly covenants and agrees as followsthat upon a Change of Control, termination by the Executive for Good Reason or termination with Cause:
(a) The Executive acknowledges that the Company currently conduct conducts throughout the United States (the "Territory") the business of direct marketing merchandise and membership services including without limitation customer segmentation and modeling (the "Subject Membership/Enhancement Services Business"), as defined below. Accordingly, in consideration of the covenants of the Company pursuant to this Agreement, from the date hereof until the first anniversary of the Executive's Termination Date (the "Noncompete Period"), the Executive shall not, directly or indirectly, enter into, engage in, assist, give or lend funds to or otherwise finance, be employed by or consult with, or have a financial or other interest in, any business “Competitor” (as defined below) which engages in the Subject Business and markets programs, products or services similar to those of the Company as of the Termination DateMembership/Enhancement Services Business, whether for or by himself or as an independent contractor, agent, stockholder, partner or joint venturer for with any other Personsuch Competitor, provided that the aggregate ownership by the Executive of no more than two percent of the outstanding equity securities of any Personperson, including any Competitor, which securities are traded on a national or foreign securities exchange, quoted on the Nasdaq Stock Market or other automated quotation system shall not be deemed to be giving or lending funds to, otherwise financing or having a financial interest in a competitorCompetitor. In As used herein, the event term, “Competitor” means those persons identified on Exhibit B hereto and any company or any business unit of any company that any Person in which the executive has any financial or other interest directly or indirectly enters into the Subject Business receives more than 75% of its annual revenues engaging in the Territory during the Noncompete Period, the Executive shall divest all of his interest (other than any amount permitted under this paragraph) in such Person within 30 days after such Person enters into the Subject Business in the Territory.
(b) The Executive covenants and agrees that during the period commencing with the date of this Agreement and ending on the first anniversary of the Termination Date, the Executive will not, directly or indirectly, either for himself or for any other Person (i) solicit any employee of the Company to terminate his or her employment with the Company or employ any such individual during his or her employment with the Company and for a period of six months after such individual terminates employment with the Company, (ii) solicit any supplier to the Company as of the Termination Date to purchase or distribute information, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by the Company, or (iii) make any disparaging statements concerning the Company or its officers, directors or employees, to any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of the CompanyMembership/Enhancement Services Business. Also, as such relationship relates used herein, Membership/Enhancement Services Business means the sale or marketing of memberships to clubs for which club members/customers pay an annual membership fee which fee is automatically renewed unless the Company's conduct of the Subject Businesscustomer cancels his/her/its membership.
(c) The Executive understands that the foregoing restrictions may limit the Executive's ability to earn a livelihood in a business similar to the business of the Company, but the Executive nevertheless believes that the Executive has received and will receive sufficient consideration and other benefits as an employee of the Company and as otherwise provided hereunder to clearly justify such restrictions which, in any event (given the Executive's education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.
Appears in 1 contract
Samples: Severance and Change of Control Agreement (Provell Inc)
Noncompetition Nonsolicitation and Nondisparagement. The Executive Participant acknowledges and agrees with the Company that, during that in the course of the Executive's employment Participant’s service with Company Group the CompanyParticipant will become familiar with trade secrets and other confidential information concerning the Company Group and that the Participant’s services will be of special, unique and extraordinary value to the Company and the other members of the Company Group. Therefore, the Executive has had and will continue to have the opportunity to develop relationships with existing employees, customers and other business associates of the Company, which relationships constitute goodwill of the Company, and the Executive acknowledges and Participant agrees that the Company would be irreparably damaged if the Executive were to take actions that would damage or misappropriate such goodwill. The Executive accordingly covenants and agrees as followsthat:
(ai) The Executive acknowledges From the Date of Grant specified above through the first (1st) anniversary of the termination of the Participant’s service with the Company Group (the “Restricted Period”), the Participant shall not, anywhere in the world, directly or indirectly (A) own, manage, control, participate in, consult with, render services for, or in any manner engage in any business that is a Competing Business as of the relevant date of determination, (B) interfere with any business relation of the Company Group, or (C) usurp any business opportunity of the Company Group that the Participant learned of while providing services to the Company currently conduct throughout Group or while a party to this Agreement. Nothing herein shall prohibit the United States (Participant from being a passive owner of not more than 5% of the "Territory") outstanding stock of any class of any entity that is publicly traded, so long as the Participant has no active participation in the business of direct marketing merchandise and membership services including without limitation customer segmentation and modeling (the "Subject Business")such entity. Accordingly, in consideration For purposes of the covenants of the Company pursuant to this Agreement, from the relevant date of determination shall mean (A) the date hereof until upon which the first anniversary Participant commences to engage in such activity with respect to any activity commenced during the Participant’s employment with or other service to the Company Group, or (y) the date of termination of the Termination Date Participant’s service with the Company Group (the "Noncompete Period"), “Termination Date”) with respect to any activity the Executive shall not, directly or indirectly, enter into, Participant commences to engage in, assist, give or lend funds to or otherwise finance, be employed by or consult with, or have a financial or other interest in, any business which engages in the Subject Business and markets programs, products or services similar to those of the Company as of after the Termination Date.
(ii) During the Restricted Period, whether for or by himself or as an independent contractor, agent, stockholder, partner or joint venturer for any other Person, provided that the aggregate ownership by the Executive of no more than two percent of the outstanding equity securities of any Person, which securities are traded on a national or foreign securities exchange, quoted on the Nasdaq Stock Market or other automated quotation system Participant shall not be deemed to be giving or lending funds to, otherwise financing or having a financial interest in a competitor. In the event that any Person in which the executive has any financial or other interest directly or indirectly enters into the Subject Business in the Territory during the Noncompete Period, the Executive shall divest all of his interest through another entity (other than any amount permitted under this paragraphA) in such Person within 30 days after such Person enters into the Subject Business in the Territory.
(b) The Executive covenants and agrees that during the period commencing with the date of this Agreement and ending on the first anniversary of the Termination Date, the Executive will not, directly induce or indirectly, either for himself or for any other Person (i) solicit attempt to induce any employee of the Company Group to terminate his or her employment with leave the employ of any member of the Company Group or employ (B) hire any such individual during his employee or her employment with any person who was employed by or providing services for the Company and for a period Group at any time during the twelve (12) months preceding the commencement of six months after such individual terminates employment with the Company, Restricted Period.
(iiiii) solicit any supplier During the Participant’s service to the Company as Group and continuing after the termination of such service (regardless of the Termination Date to purchase reason for such termination), the Participant will not, whether in private or distribute informationin public including through social media, products whether directly or services of indirectly, make, publish, encourage, ratify or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by the Companyauthorize, or (iii) make assist or enable any disparaging other person or entity to make, authorize, ratify or publish, any statements concerning the Company that in any way defame, criticize, malign, impugn, reflect negatively on, or its officers, directors or employees, to disparage any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of the Company, as such relationship relates to the Company's conduct of the Subject Business.
(c) The Executive understands that the foregoing restrictions may limit the Executive's ability to earn a livelihood in a business similar to the business of the Company, but the Executive nevertheless believes that the Executive has received and will receive sufficient consideration and other benefits as an employee member of the Company and as otherwise provided hereunder to clearly justify Group or investors, or their respective employees, directors, officers or managers, or that place any such restrictions which, persons or entities in a negative light in any event (given the Executive's education, skills and ability), the Executive does not believe would prevent him from otherwise earning a livingmanner whatsoever.
Appears in 1 contract
Samples: Stock Option Agreement (Castle Creek Biosciences, Inc.)
Noncompetition Nonsolicitation and Nondisparagement. The Executive acknowledges and agrees with the Company that, during the course of the Executive's employment with the Company, the Executive has had and will continue to have the opportunity to develop relationships with existing employees, customers and other business associates of the Company, which relationships constitute goodwill of the Company, and the Executive acknowledges and agrees that the Company would be irreparably damaged if the Executive were to take actions that would damage or misappropriate such goodwill. The Executive accordingly covenants and agrees as follows:
(a) The Executive acknowledges that Except as provided below, for a period of five years commencing on the Company currently conduct throughout Closing Date (the "Non-Competition Period"), Seller agrees not to, and agrees to cause its Affiliates not to, sell or provide any services in the United States of America in competition with the services sold or provided by the Subject Business as of the Closing Date (the "Territory") the business of direct marketing merchandise and membership services including without limitation customer segmentation and modeling (the "Subject Competing Business"). AccordinglyNotwithstanding the foregoing, in consideration "Competing Business" shall not include state-wide eligibility outsourcing opportunities or the provision of eligibility determination, eligibility screening, risk assessment, case management, and any related personnel services.
(b) Notwithstanding the covenants provisions of Section 8.5(a), Seller and its Affiliates shall be permitted to acquire (i) a business or Person (whether through the Company pursuant to this Agreementacquisition of assets, from securities or other ownership interests or the date hereof until the first anniversary effecting of the Termination Date a merger, consolidation, share exchange, business combination, reorganization or recapitalization or other similar transaction) (the "Noncompete PeriodAcquired Business") that is engaged in the Competing Business but only if the Competing Business conducted by the Acquired Business (A) generates no more than $25 million of revenue during the Acquired Business's most recently completed fiscal year and (B) constitutes no more than 15% of the gross revenues of the Acquired Business for its most recently completed fiscal year, and (ii) up to 5% of the securities of any Person engaged in a Competing Business.
(c) Notwithstanding the provisions of Section 8.5(a), Seller and its Affiliates shall not be prohibited from acquiring an Acquired Business where the Competing Business conducted by the Acquired Business either (i) generates more than $25 million of revenue during the Acquired Business's most recently completed fiscal year or (ii) constitutes more than 15% of the gross revenues of the Acquired Business for its most recently completed fiscal year (a "Disqualifying Acquisition," and the portion of the Acquired Business that is a Competing Business being the "Disqualified Business"), provided that Seller or its Affiliate, as applicable, offer to sell and assign the Executive Disqualified Business (and associated liabilities) obtained and assumed, directly or indirectly, in the Disqualifying Acquisition for cash to Buyer within 90 days of the consummation of the Disqualifying Acquisition at the fair market value of such Disqualified Business (and associated liabilities). The terms and conditions of such sale shall include, at the option of Seller or its Affiliate, as applicable, (i) (A) an assignment by Seller or its Affiliate, as applicable, to Buyer of its rights to the extent related to the Disqualifying Acquisition under the acquisition and related documents under which it acquired such Disqualified Business and (B) a consent by the seller of such Disqualified Business acknowledging such assignment and agreeing that Buyer may enforce such acquisition and related documents against such seller or (ii) representations, warranties and indemnification provisions substantially similar to those made in favor of Seller or its Affiliates, as applicable, under such acquisition and related documents. Representatives of Seller or its Affiliates, as applicable, and Buyer shall meet within 15 days of the date such offer is made and attempt mutually to determine in good faith such fair market value. If Buyer and Seller or its Affiliates, as applicable, are unable to determine a mutually acceptable fair market value within 20 days after their initial meeting, Buyer and Seller or its Affiliates, as applicable, shall mutually engage (and share equally in the fees and expenses of) an investment banking firm to determine within 20 days of such firm's engagement the fair market value of the Disqualified Business (and associated liabilities), which determination shall be binding upon Buyer and Seller or its Affiliates, as applicable, for purposes of Seller's or its Affiliate's, as applicable, offer to sell the Disqualified Business to Buyer as contemplated herein. Seller or its Affiliate, as applicable, shall not be obligated to keep its offer to Buyer open for more than 20 days after final determination of the fair market value of the Disqualified Business (and the associated liabilities). In the event Buyer does not close on the sale of the Disqualified Business within 75 days of Buyer's acceptance of Seller's or its Affiliate's, as applicable, offer or Buyer does not accept the offer within 20 days after final determination of such fair market value, Seller and its Affiliates shall be permitted to keep and operate, or divest, such Disqualified Business (and associated liabilities) in Seller's or its Affiliate's, as applicable, sole discretion and the restrictions of Section 8.5(a) shall not apply to the Disqualified Business.
(d) Notwithstanding the provisions of Section 8.5(a), should any Person engaged in a Competing Business acquire Seller or any of its Affiliates, directly or indirectly, by merger, acquisition or a purchase of substantially all of the assets or stock of Seller or its Affiliate, this Section 8.5 shall not apply to the acquiring party or any of its Affiliates (other than Seller and its pre-closing Affiliates) so long as (i) following such acquisition such Competing Business shall not be conducted, directly or indirectly, through Seller, any of its pre-closing Affiliates or any of their successors or assignees and (ii) none of Seller, its pre-closing Affiliates, any of their successors or assignees or their executive officers shall provide substantial assistance to the Competitive Business.
(e) In the event of a breach by Seller or any of its Affiliates of the terms of this Section 8.5, Buyer shall be entitled, if it shall so elect, to institute legal proceedings to obtain damages for any such breach, or to enforce the specific performance of such terms by Seller (or such applicable Affiliate of Seller) and to enjoin Seller (or such applicable Affiliate of Seller) from any further violation and to exercise such remedies cumulatively or in conjunction with all other rights and remedies provided by Applicable Law. Seller acknowledges that the remedies at law for any breach by Seller or its Affiliates of the provisions of this Section 8.5 may be inadequate and that Buyer shall be entitled to injunctive relief against Seller (or such applicable Affiliate of Seller) in the event of any breach.
(f) Notwithstanding the provisions of Section 8.5(a), nothing herein shall in any way restrict or limit the rights of Seller or any of its Affiliates or any successor thereof to do any of the following: (i) to engage in the Competing Business under one or more contracts as long as the anticipated annual revenues from such Competing Business under a particular contract do not exceed $1 Million per year or (ii) to engage in incidental Competing Business under one or more contracts as long as (a) with respect to a particular customer contract, the Competing Business is incidental to, or bundled with, the provision of other services under such contract, (b) with respect to a particular customer contract, the other services constitute the majority of the services to be provided under such contract, (c) the anticipated annual revenues from the incidental Competing Business under such contract do not exceed $1 Million per year, and (d) the anticipated annual revenues from incidental Competing Business services provided by Seller or its Affiliates under customer contracts do not exceed $25 million per year. Notwithstanding the provisions of Section 8.5(a), nothing herein shall in any way restrict or limit the rights of Seller or any of its Affiliates to enter into any subcontracting arrangement with a third party who is not an Affiliate of Seller in order for such third party to engage in the Competing Business with respect to a particular customer contract where the revenues related to such Competing Business would exceed the thresholds set forth in this Section 8.5(f).
(g) For a period of three (3) years commencing on the Closing Date, Seller and its Affiliates will not employ any Transferred Employee or a Seasonal Employee employed by Buyer; provided that the foregoing shall not in any way restrict or limit the rights of Seller or any of its Affiliates to employ a Transferred Employee or a Seasonal Employee who (i) is terminated by the Buyer or any of its Affiliates, (ii) responds to a general employment advertisement by Seller or any of its Affiliates in the ordinary course of its business, or (iii) contacts Seller or any of its Affiliates for employment on such Transferred Employee's or Seasonal Employee's own initiative without any solicitation from Seller or any of its Affiliates so long as such Transferred Employee was not listed on Schedule 8.5(g). For a period of three (3) years commencing on the Closing Date, Seller shall not, directly or indirectly, enter into(i) solicit the Customers of the Subject Business as of the Closing Date for work that is performed by the Subject Business as of the Closing Date, engage in(ii) cause or induce any Customer, assistsupplier or Employee of the Subject Business as of the Closing Date or any Person who held such position within the year preceding the Closing Date to cease doing business with Buyer and instead to do business with a competitor of Buyer or (iii) otherwise interfere with Buyer's relationship with the Customers and suppliers of the Subject Business with respect to work performed by the Subject Business as of the Closing Date; provided, give however, that nothing in this Section 8.5(g) shall be interpreted (A) to restrict or lend funds prohibit Seller from conducting business that does not constitute the Competing Business or (B) to restrict Seller from taking any of the actions permitted by Sections 8.5(b), (c) or otherwise finance(f).
(h) For a period of fifteen (15) months after the Closing Date, be employed Seller shall cause its executive officers and directors not to disparage in the context of the Subject Business either Buyer or its operations, the Subject Business or the Employees of the Subject Business; provided, however, that the foregoing obligation will not limit, in any way, any statements made in connection with a Legal Proceeding or as required by Applicable Law. In addition, for a period of fifteen (15) months after the Closing Date, if Buyer learns that one of Seller's employees is disparaging Buyer or consult withits operations in the context of the Subject Business, the Subject Business or have the Employees of the Subject Business, and Buyer delivers to Seller written notice of the facts regarding such disparagement, Seller shall take reasonable action to cause such employee to discontinue such disparagement during such period of time.
(i) The necessity of protection against competition from Seller and its Affiliates and the nature and scope of such protection has been carefully considered by the parties to this Agreement based upon the consultation with and advice from their respective legal counsel. The parties agree and acknowledge (i) that the duration, scope and geographic areas applicable to the covenants contained in this Section 8.5 are fair, reasonable and necessary, and do not impose a financial greater restraint than is necessary to protect the goodwill or other business interest in, any business which engages in of the Subject Business and markets programs, products or services similar to those of the Company as of the Termination Date, whether for or by himself or as an independent contractor, agent, stockholder, partner or joint venturer for any other Person, provided that the aggregate ownership by the Executive of no more than two percent of the outstanding equity securities of any Person, which securities are traded on a national or foreign securities exchange, quoted on the Nasdaq Stock Market or other automated quotation system shall not be deemed to be giving or lending funds to, otherwise financing or having a financial interest in a competitor. In the event that any Person in which the executive has any financial or other interest directly or indirectly enters into the Subject Business in the Territory during the Noncompete Period, the Executive shall divest all of his interest (other than any amount permitted under this paragraph) in such Person within 30 days after such Person enters into the Subject Business in the Territory.
(b) The Executive covenants Buyer's investment therein and agrees that during the period commencing with the date of this Agreement and ending on the first anniversary of the Termination Date, the Executive will not, directly or indirectly, either for himself or for any other Person (i) solicit any employee of the Company to terminate his or her employment with the Company or employ any such individual during his or her employment with the Company and for a period of six months after such individual terminates employment with the Companyits business goodwill, (ii) solicit any supplier to the Company as of the Termination Date to purchase or distribute informationthat adequate compensation has been received by Seller for such obligations, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by the Company, or and (iii) make that these obligations do not prevent Seller and its Affiliates from conducting the Retained Business. If any disparaging statements concerning provision of this Section 8.5 is held to be illegal, invalid or unenforceable under present or future laws effective during the Company Non-Competition Period, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable, but no such added provision shall be broader or result in a greater limitation of the activities of Seller or its officersAffiliates than is provided in this Section 8.5 on the date hereof. If the automatic reformation provision contained in this Section 8.5(i) for any reason fails or is held to be illegal, directors invalid or employeesunenforceable, the parties request that the Governmental Entity or arbitrator(s), as the case may be, making such determination interpret, alter, amend and modify the terms of this Section 8.5 to any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate include as much of the Companyscope, time period and geographic area specified therein as may be possible without rendering any provision of this Section 8.5, illegal, invalid or unenforceable, but no such relationship relates to the Company's conduct modified term shall be broader or result in a greater limitation of the Subject Businessactivities of Seller and its Affiliates than is provided in this Section 8.5 on the date hereof.
(c) The Executive understands that the foregoing restrictions may limit the Executive's ability to earn a livelihood in a business similar to the business of the Company, but the Executive nevertheless believes that the Executive has received and will receive sufficient consideration and other benefits as an employee of the Company and as otherwise provided hereunder to clearly justify such restrictions which, in any event (given the Executive's education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.
Appears in 1 contract
Noncompetition Nonsolicitation and Nondisparagement. The Executive acknowledges and agrees (a) From the Closing Date until such time as the BCA Supply Agreements are terminated in their entirety in accordance with their terms, Seller shall not, anywhere in the Company thatworld, during the course of the Executive's employment with the Companyitself manufacture or directly or indirectly own or control any Person engaged in a business, the Executive has had and will continue to have the opportunity to develop relationships with existing employees, customers and other business associates of the Companyor manage a business, which relationships constitute goodwill engages in the manufacture of Restricted Products; provided, however, that Restricted Products shall in no event include any non-proprietary detail component of an End Item Assembly (as such term is defined in the CompanySpecial Business Provisions (Sustaining) or any dual-sourced minor sub-assembly parts (e.g., and "Boeing standards", screws, brackets, clips, etc.).
(b) Notwithstanding anything in Section 6.12(a) to the Executive acknowledges and agrees that the Company would be irreparably damaged if the Executive were to take actions that would damage or misappropriate such goodwill. The Executive accordingly covenants and agrees as followscontrary:
(ai) Nothing herein shall be construed so as to preclude Seller and its Affiliates from owning, controlling or managing a modification, maintenance, repair or overhaul facility (or any combination of the foregoing) for aftermarket products.
(ii) Nothing herein shall be construed so as to preclude Seller and its Affiliates from:
(A) continuing anywhere in the world any type of business conducted by Seller or its Affiliates on the date hereof, which is not part of the Business;
(B) entering into any teaming, joint venture, license or similar agreement or relationship with a Person, except to the extent Seller owns, controls or manages such Person, but in no event shall the foregoing preclude the activities provided for in Section 6.12(b)(i) above; or
(C) providing debt financing to a company, provided that such debt financing is entered into in the ordinary course of business by Seller or an Affiliate of Seller whose principal business includes providing financing to third parties.
(iii) In the event Seller completes an acquisition of the business or assets of any Person which derived more than ten percent (10%) of its gross revenue for the immediately prior fiscal year from the sale of Restricted Products, Seller shall, within twenty-four (24) months from such investment or acquisition, either (A) divest such portion of the newly acquired business which manufactures Restricted Products; or (B) cease its manufacturing of Restricted Products. In the event Seller completes an acquisition of the business or assets of any Person which derived less than ten percent (10%) of its gross revenue for the immediately prior fiscal year from the sale of Restricted Products, Seller shall be entitled to maintain ownership of such business or assets and continue its business.
(iv) The Executive acknowledges that covenant not to compete set forth in Section 6.12(a) shall be deemed null and void (A) as to a Restricted Product, only for such period of time as pursuant to the Company currently conduct throughout the United States (the "Territory") the business of direct marketing merchandise and membership services including without limitation customer segmentation and modeling (the "Subject Business"). Accordingly, in consideration terms of the covenants relevant BCA Supply Agreement Seller is permitted to produce such Restricted Product or obtain such Restricted Product from an alternative source (including dual sourcing), (B) as to a Restricted Product, if the relevant BCA Supply Agreement is terminated in accordance with its terms with respect to such Restricted Product, (C) as to Restricted Products other than those set forth in Attachment 1 to the Special Business Provisions (787), if the relevant BCA Supply Agreement is terminated in accordance with its terms in its entirety, or (D) as to the Restricted Products set forth in Attachment 1 to the Special Business Provisions (787), to the extent any product contemplated thereunder (1) is not required to be purchased from Buyer or (2) is permitted to be dual sourced by Seller; provided, however, that in the case of the Company pursuant to this Agreement, from the date hereof until the first anniversary of the Termination Date (the "Noncompete Period"A), the Executive covenant not to compete shall only be deemed null and void to the extent and for such time as is necessary for Seller to fulfill its requirements pursuant to the applicable BCA Supply Agreement.
(c) For avoidance of doubt, none of the parts requirements for the 747-400 Special Freight Modification Parts shall be included in the term Restricted Products.
(d) For a period of two (2) years after the Closing Date, Seller shall not, directly or indirectly, enter intocause, engage ininduce or attempt to cause or induce any licensor of the Business on the Closing Date to cease doing business with Buyer or knowingly interfere with its relationship with Buyer.
(e) For a period of two (2) years following the Closing Date, assistunless otherwise required by a collective bargaining agreement or Boeing policy applicable to non-union, give non-management employees, Seller shall not solicit the employment of any employee of Buyer or lend funds to or otherwise finance, be any Person employed by or consult withBuyer at any time within six (6) months prior to the date of such solicitation, or have a financial or other interest inthan any employee whose employment has been terminated by Buyer; provided, any business which engages in the Subject Business and markets programshowever, products or services similar to those of the Company as of the Termination Date, whether for or by himself or as an independent contractor, agent, stockholder, partner or joint venturer for any other Person, provided that the aggregate ownership by the Executive of no more than two percent of the outstanding equity securities of any Person, which securities are traded on a national or foreign securities exchange, quoted on the Nasdaq Stock Market or other automated quotation system Seller shall not be deemed to be giving or lending funds to, otherwise financing or having a financial interest in a competitor. In the event that any Person in which the executive has any financial or other interest directly or indirectly enters into the Subject Business in the Territory during the Noncompete Period, the Executive shall divest all of his interest (prohibited from soliciting employees through general advertising other than any amount permitted under this paragraph) in such Person within 30 days after such Person enters into the Subject Business local newspapers in the TerritoryWichita or Tulsa.
(bf) The Executive covenants and agrees that during the period commencing with the date of this Agreement and ending on the first anniversary of the Termination Date, the Executive will not, directly or indirectly, either for himself or for any other Person (i) solicit any employee of the Company to terminate his or her employment with the Company or employ any such individual during his or her employment with the Company and for For a period of six months after such individual terminates employment with two (2) years following the CompanyClosing Date, unless otherwise required by a collective bargaining agreement, Seller shall not hire, retain or attempt to hire or retain any Person set forth under paragraph (iia) solicit any supplier to the Company as of the Termination Date to purchase or distribute information, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by the Company, or (iii) make any disparaging statements concerning the Company or its officers, directors or employees, to any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of the Company, as such relationship relates to the Company's conduct of the Subject Business.
(c) The Executive understands that the foregoing restrictions may limit the Executive's ability to earn a livelihood in a business similar to the business of the Company, but the Executive nevertheless believes that the Executive has received and will receive sufficient consideration and other benefits as an employee of the Company and as otherwise provided hereunder to clearly justify such restrictions which, in any event (given the Executive's education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.Schedule 6.12
Appears in 1 contract
Samples: Asset Purchase Agreement (Spirit AeroSystems Holdings, Inc.)
Noncompetition Nonsolicitation and Nondisparagement. The 6.1 During Executive’s employment, Executive acknowledges and agrees shall not plan, organize or engage in any business competitive with the Company or any product or service marketed or planned for marketing by the Company or assist or work with any other person or entity to do so.
6.2 During Executive’s employment and for a period of one year after termination of Executive’s employment with the Company for any reason, under any circumstance, by either party, whether voluntary or involuntary, Executive shall not, without the prior written permission of the Corporation’s Board of Directors, (i) directly or indirectly engage in activities with a Competitor or (ii) own (whether as a shareholder, partner or otherwise, other than as a 3% or less shareholder of a publicly held company) any interest in a Competitor, or (iii) be connected as an officer, director, advisor, consultant, agent or employee or participate in the management of any Competitor. If Executive violates this provision, then the duration of the restriction set forth in this provision shall be extended by the period of time during which Executive was not in compliance with this provision, provided that, during except by order of a court of competent jurisdiction, this restriction shall not apply past the course two-year anniversary of the last date of Executive's ’s employment with the Company. If Executive is interested in pursuing any activity that may violate this provision, the Corporation encourages Executive has had to bring that situation to the Corporation’s attention so that the parties can consider and will continue discuss in advance whether Executive’s proposed activity would violate this provision and/or whether some accommodation might be possible that would allow Executive to have the opportunity to develop relationships with existing employees, customers and other business associates of engage in such activity while still protecting the Company, which relationships constitute goodwill ’s legitimate interests.
6.3 During Executive’s employment and for a period of the Company, and the Executive acknowledges and agrees that one year after termination of Executive’s employment with the Company would be irreparably damaged if the Executive were to take actions that would damage for any reason, under any circumstance, by either party, whether voluntary or misappropriate such goodwill. The Executive accordingly covenants and agrees as follows:
(a) The Executive acknowledges that the Company currently conduct throughout the United States (the "Territory") the business of direct marketing merchandise and membership services including without limitation customer segmentation and modeling (the "Subject Business"). Accordinglyinvoluntary, in consideration of the covenants of the Company pursuant to this Agreement, from the date hereof until the first anniversary of the Termination Date (the "Noncompete Period"), the Executive shall notnot solicit, entice, encourage, or induce (or attempt to do so, directly or indirectly), enter into, engage in, assist, give or lend funds to or otherwise finance, be employed by or consult with, or have a financial or other interest in, any business which engages in the Subject Business and markets programs, products or services similar to those of the Company as of the Termination Date, whether for or by himself or as an independent contractor, agent, stockholder, partner or joint venturer for any other Person, provided that the aggregate ownership by the Executive of no more than two percent of the outstanding equity securities of any Person, which securities are traded on a national or foreign securities exchange, quoted on the Nasdaq Stock Market or other automated quotation system shall not be deemed to be giving or lending funds to, otherwise financing or having a financial interest in a competitor. In the event that any Person in which the executive has any financial or other interest directly or indirectly enters into the Subject Business in the Territory during the Noncompete Period, the Executive shall divest all of his interest (other than any amount permitted under this paragraph) in such Person within 30 days after such Person enters into the Subject Business in the Territory.
(b) The Executive covenants and agrees that during the period commencing with the date of this Agreement and ending on the first anniversary of the Termination Date, the Executive will not, directly or indirectly, either for himself or for any other Person (i) solicit any employee of the Company to leave or terminate his or her employment with the Company or employ to establish a relationship with a Competitor. This Article 6.3 shall apply to the then-current employees of the Company and any such individual during his or her who was employed by the Company at any time in the forty-five (45) day period immediately prior to Executive’s last day of employment with the Company Company. If Executive violates this provision, then the duration of the restriction set forth in this provision shall be extended by the period of time during which Executive was not in compliance with this provision, provided that, except by order of a court of competent jurisdiction, this restriction shall not apply past the two-year anniversary of the last date of Executive’s employment with the Company.
6.4 During Executive’s employment and for a period of six months one year after such individual terminates termination of Executive’s employment with the Company for any reason, under any circumstance, by either party, whether voluntary or involuntary, Executive shall not solicit, engage, or induce (or attempt to do so, directly or indirectly) any vendor, supplier, sales agent or buying agent of the Company to commence work on behalf of, or to establish a relationship with, a Competitor or to sever or materially alter his/her/its relationship with the Company. The post-termination obligations of this Article 6.4 shall apply to the vendors, (ii) solicit any supplier to suppliers, sales agents and buying agents of the Company as of the Termination Date date of Executive’s termination and at any time in the one-year period immediately prior to purchase Executive’s termination date. If Executive violates this provision, then the duration of the restriction set forth in this provision shall be extended by the period of time during which Executive was not in compliance with this provision, provided that, except by order of a court of competent jurisdiction, this restriction shall not apply past the two-year anniversary of the last date of Executive’s employment with the Company.
6.5 If Executive’s employment is involuntarily terminated by the Corporation other than for Cause, the Corporation shall pay Executive the greater of (i) $ or distribute information(ii) six (6) months of Executive’s highest annual salary at any time during the twelve (12) month period preceding the date of Executive’s termination, paid according to the Corporation’s normal payroll schedule and practices and subject to applicable withholdings, deductions, and tax reporting requirements; provided that as a condition to receipt of such severance Executive executes and does not rescind a general release of claims as prepared by the Corporation and in favor of the Company. Further, in the absence of an applicable government subsidy with respect to COBRA coverage and provided that Executive timely elects COBRA and executes and does not rescind the release of claims referred to above, the Company shall continue to pay for the six (6) months following the Executive’s last date of employment the employer portion of the premiums for health and dental insurance coverage under the Company’s group health and dental insurance plans in which Executive was participating on the last date of employment. Executive shall continue to be responsible to pay Executive’s portion of the premiums, if any, for such insurance coverage during this period. The Company will discontinue payments under this Article 6.5 if, and at such time, Executive (i) is covered or eligible to be covered under the health and/or dental insurance policy of a new employer, or (ii) ceases to participate, for whatever reason, in the Company’s group insurance plans. By his signature below, Executive acknowledges and agrees that the Company may modify or terminate its group insurance plans at any time and that Executive shall have the same right to participate in the Company’s group insurance plans only as is provided on an equivalent basis to the Company’s employees. Executive further agrees to promptly provide the Company notice if Executive becomes covered or eligible to be covered under the health and/or dental insurance policy of a new employer. In the event there is a government subsidy with respect to COBRA for which the Company and/or Executive is eligible at time of Executive’s termination of employment, then such subsidy shall take precedence and be controlling and the Company shall not be obligated to pay the employer portion of premiums as described above but only to comply with the subsidy criteria.
6.6 Executive promises and agrees not to disparage the Company and the Company’s officers, directors, employees, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by the Company, or (iii) make any disparaging statements concerning the Company or its officers, directors or employees, to any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of the Company, as such relationship relates to the Company's conduct of the Subject Businessservices.
(c) The Executive understands that the foregoing restrictions may limit the Executive's ability to earn a livelihood in a business similar to the business of the Company, but the Executive nevertheless believes that the Executive has received and will receive sufficient consideration and other benefits as an employee of the Company and as otherwise provided hereunder to clearly justify such restrictions which, in any event (given the Executive's education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.
Appears in 1 contract
Noncompetition Nonsolicitation and Nondisparagement. The 6.1 During Executive’s employment, Executive acknowledges and agrees shall not plan, organize or engage in any business competitive with the Company or any product or service marketed or planned for marketing by the Company or assist or work with any other person or entity to do so.
6.2 During Executive’s employment and for the Restricted Period, Executive shall not, without the prior written permission of the Board, (i) directly or indirectly engage in activities with a Competitor or (ii) own (whether as a shareholder, partner or otherwise, other than as a 3% or less shareholder of a publicly held company) any interest in a Competitor, or (iii) be connected as an officer, director, advisor, consultant, agent or employee or participate in the management of any Competitor. If Executive violates this provision, then the duration of the restriction set forth in this provision shall be extended by the period of time during which Executive was not in compliance with this provision, provided that, during except by order of a court of competent jurisdiction, this restriction shall not apply past the course two-year anniversary of the last date of Executive's ’s employment with the Company. If Executive is interested in pursuing any activity that may violate this provision, the Corporation encourages Executive has had to bring that situation to the Corporation’s attention so that the parties can consider and will continue discuss in advance whether Executive’s proposed activity would violate this provision and/or whether some accommodation might be possible that would allow Executive to have the opportunity to develop relationships with existing employees, customers and other business associates of engage in such activity while still protecting the Company’s legitimate interests.
6.3 During Executive’s employment and for the Restricted Period, which relationships constitute goodwill of the Company, and the Executive acknowledges and agrees that the Company would be irreparably damaged if the Executive were to take actions that would damage or misappropriate such goodwill. The Executive accordingly covenants and agrees as follows:
(a) The Executive acknowledges that the Company currently conduct throughout the United States (the "Territory") the business of direct marketing merchandise and membership services including without limitation customer segmentation and modeling (the "Subject Business"). Accordingly, in consideration of the covenants of the Company pursuant to this Agreement, from the date hereof until the first anniversary of the Termination Date (the "Noncompete Period"), the Executive shall notnot solicit, entice, encourage, or induce (or attempt to do so, directly or indirectly), enter into, engage in, assist, give or lend funds to or otherwise finance, be employed by or consult with, or have a financial or other interest in, any business which engages in the Subject Business and markets programs, products or services similar to those of the Company as of the Termination Date, whether for or by himself or as an independent contractor, agent, stockholder, partner or joint venturer for any other Person, provided that the aggregate ownership by the Executive of no more than two percent of the outstanding equity securities of any Person, which securities are traded on a national or foreign securities exchange, quoted on the Nasdaq Stock Market or other automated quotation system shall not be deemed to be giving or lending funds to, otherwise financing or having a financial interest in a competitor. In the event that any Person in which the executive has any financial or other interest directly or indirectly enters into the Subject Business in the Territory during the Noncompete Period, the Executive shall divest all of his interest (other than any amount permitted under this paragraph) in such Person within 30 days after such Person enters into the Subject Business in the Territory.
(b) The Executive covenants and agrees that during the period commencing with the date of this Agreement and ending on the first anniversary of the Termination Date, the Executive will not, directly or indirectly, either for himself or for any other Person (i) solicit any employee of the Company to leave or terminate his or her employment with the Company or employ any such individual during his or her employment to establish a relationship with a Competitor. This Article 6.3 shall apply to the then-current employees of the Company and for a any individual who was employed by the Company at any time in the forty-five (45) day period immediately prior to Executive’s last day of six months after such individual terminates employment with the Company. If Executive violates this provision, then the duration of the restriction set forth in this provision shall be extended by the period of time during which Executive was not in compliance with this provision, provided that, except by order of a court of competent jurisdiction, this restriction shall not apply past the two-year anniversary of the last date of Executive’s employment with the Company.
6.4 During Executive’s employment and for the Restricted Period, Executive shall not solicit, engage, or induce (or attempt to do so, directly or indirectly) any vendor, supplier, sales agent or buying agent of the Company to commence work on behalf of, or to establish a relationship with, a Competitor or to sever or materially alter his/her/its relationship with the Company. The post-termination obligations of this Article 6.4 shall apply to the vendors, 5
6.5 If Executive’s employment is involuntarily terminated by the Corporation other than for Cause, the Corporation shall pay Executive _____ months of Executive’s highest annual salary at any time during the twelve (12) month period preceding the date of Executive’s termination, paid according to the Corporation’s normal payroll schedule and practices and subject to applicable withholdings, deductions, and tax reporting requirements; provided that as a condition to receipt of such severance Executive executes and does not rescind a general release of claims in favor of the Company and in the form attached as Exhibit A hereto or a substantially similar form prepared by the Corporation (a “General Release”). Additionally, Executive shall receive any annual bonus earned by Executive for the prior fiscal year, regardless of whether Executive is employed on the date the bonus is actually paid, so long as Executive was employed on the last day of the fiscal year. The Corporation shall pay such annual bonus to Executive in the ordinary course of business, but no later than 120 days after the close of the fiscal year. Further, in the absence of an applicable government subsidy with respect to COBRA coverage and provided that Executive timely elects COBRA and executes and does not rescind the release of claims referred to above, the Company shall continue to pay for the _____ months following Executive’s last date of employment the employer portion of the premiums for health and dental insurance coverage under the Company’s group health and dental insurance plans in which Executive was participating on the last date of employment. Executive shall continue to be responsible to pay Executive’s portion of the premiums, if any, for such insurance coverage during this period. The Company will discontinue payments under this Article 6.5 if, and at such time, Executive (i) is covered or eligible to be covered under the health and/or dental insurance policy of a new employer, or (ii) solicit ceases to participate, for whatever reason, in the Company’s group insurance plans. By his signature below, Executive acknowledges and agrees that the Company may modify or terminate its group insurance plans at any supplier time and that Executive shall have the same right to participate in the Company’s group insurance plans only as is provided on an equivalent basis to the Company’s employees. Executive further agrees to promptly provide the Company written notice if Executive becomes covered or eligible to be covered under the health and/or dental insurance policy of a new employer. In the event there is a government subsidy with respect to COBRA for which the Company and/or Executive is eligible at time of Executive’s termination of employment, then such subsidy shall take precedence and be controlling and the Company shall not be obligated to pay the employer portion of premiums as of the Termination Date described above but only to purchase or distribute information, products or services of or on behalf of the Executive or such other Person that are competitive comply with the informationsubsidy criteria.
6.6 Notwithstanding the foregoing, products if Executive’s employment is terminated by (i) the Company or services its successor without Cause up to one hundred and eighty (180) days prior to a Change in Control or upon or within twelve (12) months following a Change in Control or (ii) by Executive by resignation with Good Reason upon or within twelve (12) months following a Change in Control, and provided that as a condition to receipt of such severance Executive executes and does not rescind a General Release, Executive shall be entitled to receive from the 6 Company or its successor (A) a lump sum payment equivalent to _____ months of Executive’s highest annual salary at any time during the twelve (12) month period preceding the date of Executive’s termination, adjusted for any severance payments previously made to Executive by the Company, and _____ times Executive’s then current on-target bonus; and (B) in the absence of an applicable government subsidy with respect to COBRA coverage and provided that Executive timely elects COBRA, the Company shall pay a lump payment equivalent to _____ months of the employer portion of the premiums for health and dental insurance coverage under the Company’s group health and dental insurance plans in which Executive was participating on the last date of employment, adjusted for any severance payments previously made by the Company. If Executive’s termination occurs on or (iii) make any disparaging statements concerning after the Change in Control, the lump sum payments under this Article 6.6 shall be made by the Company or its officerssuccessor no later than sixty (60) days following Executive’s termination date. If Executive is involuntarily terminated, directors commences severance benefits under Article 6.5 above and subsequently becomes eligible for severance under this Article 6.6 upon the occurrence of a Change in Control within one hundred and eighty (180) days following termination, Executive’s unpaid severance benefits shall be adjusted as provided under this Article 6.6 and any remaining unpaid benefits shall be paid in a single lump sum no later than sixty (60) days following the Change in Control.
6.7 In the event that any benefits payable to Executive pursuant to this Agreement or employeesany other benefit plan or agreement (“Payments”) (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this Article 6.7 would be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions (the “Excise Tax”), then Executive’s Payments shall be provided to Executive as to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax. In the event that the payments and/or benefits are to be reduced pursuant to this Article 6.7, such payments and benefits shall be reduced such that the amount the Payments are reduced to as close to the amount that is $1.00 below the amount where the Excise Tax would be required to be paid as is reasonably possible. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Section 409A of the Code and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero. For purposes of making the calculations required by this Article 6.7, the Company’s finance personnel responsible for the calculation may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Executive shall furnish to such finance personnel such information and documents as the finance personnel may reasonably request in order to make a determination under this Article 6.7.
6.8 This Agreement shall be interpreted and construed in a manner that avoids the imposition of taxes and other penalties under Section 409A of the Code (such taxes and other penalties referred to collectively as “409A Penalties”). In the event that the Company determines that the terms of this Agreement would subject Executive to 409A Penalties, the Company and Executive shall cooperate diligently to amend the terms of this Agreement to avoid such 409A Penalties, to the extent possible; provided, however, that this Article 6.8 shall not create any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of obligation on the Company, as such relationship relates to the Company's conduct of the Subject Business.
(c) The Executive understands that the foregoing restrictions may limit the Executive's ability to earn a livelihood in a business similar to the business of the Company, but the Executive nevertheless believes that the Executive has received and will receive sufficient consideration and other benefits as an employee part of the Company to adopt any such amendment or take any such other action. All references in this Agreement to Executive’s termination or cessation of employment shall mean a “separation from service” within the meaning of Section 409A of the 7
6.9 Executive promises and as otherwise provided hereunder agrees not to clearly justify such restrictions whichdisparage the Company and the Company’s officers, in any event (given the Executive's educationdirectors, skills and ability)employees, the Executive does not believe would prevent him from otherwise earning a livingproducts or services.
Appears in 1 contract
Noncompetition Nonsolicitation and Nondisparagement. The 7.1 During Executive’s employment and for a period of one year after the termination of Executive’s employment (for any reason): (i) Executive acknowledges and agrees shall not plan, organize or engage in any business competitive with the Company that, during the course of the Executive's employment with the Company, the Executive has had and will continue to have the opportunity to develop relationships with existing employees, customers and other business associates of the Company, which relationships constitute goodwill of the Company, and the Executive acknowledges and agrees that or any product or service marketed or planned for marketing by the Company would be irreparably damaged if the Executive were or assist or work with any other person or entity to take actions that would damage or misappropriate such goodwill. The Executive accordingly covenants and agrees as follows:
do so; (aii) The Executive acknowledges that the Company currently conduct throughout the United States (the "Territory") the business of direct marketing merchandise and membership services including without limitation customer segmentation and modeling (the "Subject Business"). Accordingly, in consideration of the covenants of the Company pursuant to this Agreement, from the date hereof until the first anniversary of the Termination Date (the "Noncompete Period"), the Executive shall not, without the prior written permission of the Corporation’s Board of Directors, (x) directly or indirectly, enter into, indirectly engage in, assist, give in activities with a Prohibited Company or lend funds to or otherwise finance, be employed by or consult with, or have (y) own (whether as a financial or other interest in, any business which engages in the Subject Business and markets programs, products or services similar to those of the Company as of the Termination Date, whether for or by himself or as an independent contractor, agent, stockholdershareholder, partner or joint venturer for otherwise, other than as a 3% or less shareholder of a publicly held company) any other Person, provided that the aggregate ownership by the Executive of no more than two percent of the outstanding equity securities of any Person, which securities are traded on a national or foreign securities exchange, quoted on the Nasdaq Stock Market or other automated quotation system shall not be deemed to be giving or lending funds to, otherwise financing or having a financial interest in a competitor. In the event that any Person in which the executive has any financial Prohibited Company, or other interest directly (z) act as an officer, director, advisor, consultant, agent or indirectly enters into the Subject Business employee or otherwise participate in the Territory during management of any Prohibited Company.
7.2 During Executive’s employment and for a period of one year after termination of Executive’s employment with the Noncompete PeriodCorporation for any reason, the under any circumstance, by either party, whether voluntary or involuntary, Executive shall divest all of his interest not solicit, entice, encourage, or induce (other than any amount permitted under this paragraph) in such Person within 30 days after such Person enters into the Subject Business in the Territory.
(b) The Executive covenants and agrees that during the period commencing with the date of this Agreement and ending on the first anniversary of the Termination Date, the Executive will notor attempt to do so, directly or indirectly), either for himself or for any other Person (i) solicit any employee of the Company to leave or terminate his or her employment with the Company or employ to establish a relationship with a Prohibited Company. This Section 7.2 shall apply to the then-current employees of the Company and any such individual during his or her who was employed by the Company at any time in the forty-five (45) day period immediately prior to Executive’s last day of employment with the Company Company.
7.3 During Executive’s employment and for a period of six months one year after such individual terminates termination of Executive’s employment with the Corporation for any reason, under any circumstance, by either party, whether voluntary or involuntary, Executive shall not solicit, engage, or induce (or attempt to do so, directly or indirectly) any vendor, supplier, sales agent or buying agent of the Company to commence work on behalf of, or to establish a relationship with, a Prohibited Company or to sever or materially alter his/her/its relationship with the Company. The post-termination obligations of this Section 7.4 shall apply to the vendors, (ii) solicit any supplier to suppliers, sales agents and buying agents of the Company as of the Termination Date date of Executive’s termination and at any time in the six-month period immediately prior to purchase Executive’s termination date.
7.4 During and after Executive’s employment with the Corporation, Executive promises and agrees not to disparage the Company or distribute informationthe Company’s officers, directors, employees, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by the Company, or (iii) make any disparaging statements concerning the Company or its officers, directors or employees, to any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of the Company, as such relationship relates to the Company's conduct of the Subject Businessservices.
(c) The Executive understands that the foregoing restrictions may limit the Executive's ability to earn a livelihood in a business similar to the business of the Company, but the Executive nevertheless believes that the Executive has received and will receive sufficient consideration and other benefits as an employee of the Company and as otherwise provided hereunder to clearly justify such restrictions which, in any event (given the Executive's education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.
Appears in 1 contract
Noncompetition Nonsolicitation and Nondisparagement. The 6.1 During Executive’s employment, Executive acknowledges and agrees shall not plan, organize or engage in any business competitive with the Company or any product or service marketed or planned for marketing by the Company or assist or work with any other person or entity to do so.
6.2 During Executive’s employment and for a period of one year after termination of Executive’s employment with the Company for any reason, under any circumstance, by either party, whether voluntary or involuntary, Executive shall not, without the prior written permission of the Corporation’s Board of Directors, (i) directly or indirectly engage in activities with a Competitor or (ii) own (whether as a shareholder, partner or otherwise, other than as a 3% or less shareholder of a publicly held company) any interest in a Competitor, or (iii) be connected as an officer, director, advisor, consultant, agent or employee or participate in the management of any Competitor. If Executive violates this provision, then the duration of the restriction set forth in this provision shall be extended by the period of time during which Executive was not in compliance with this provision, provided that, during except by order of a court of competent jurisdiction, this restriction shall not apply past the course two-year anniversary of the last date of Executive's ’s employment with the Company. If Executive is interested in pursuing any activity that may violate this provision, the Corporation encourages Executive has had to bring that situation to the Corporation’s attention so that the parties can consider and will continue discuss in advance whether Executive’s proposed activity would violate this provision and/or whether some accommodation might be possible that would allow Executive to have the opportunity to develop relationships with existing employees, customers and other business associates of engage in such activity while still protecting the Company, which relationships constitute goodwill ’s legitimate interests.
6.3 During Executive’s employment and for a period of the Company, and the Executive acknowledges and agrees that one year after termination of Executive’s employment with the Company would be irreparably damaged if the Executive were to take actions that would damage for any reason, under any circumstance, by either party, whether voluntary or misappropriate such goodwill. The Executive accordingly covenants and agrees as follows:
(a) The Executive acknowledges that the Company currently conduct throughout the United States (the "Territory") the business of direct marketing merchandise and membership services including without limitation customer segmentation and modeling (the "Subject Business"). Accordinglyinvoluntary, in consideration of the covenants of the Company pursuant to this Agreement, from the date hereof until the first anniversary of the Termination Date (the "Noncompete Period"), the Executive shall notnot solicit, entice, encourage, or induce (or attempt to do so, directly or indirectly), enter into, engage in, assist, give or lend funds to or otherwise finance, be employed by or consult with, or have a financial or other interest in, any business which engages in the Subject Business and markets programs, products or services similar to those of the Company as of the Termination Date, whether for or by himself or as an independent contractor, agent, stockholder, partner or joint venturer for any other Person, provided that the aggregate ownership by the Executive of no more than two percent of the outstanding equity securities of any Person, which securities are traded on a national or foreign securities exchange, quoted on the Nasdaq Stock Market or other automated quotation system shall not be deemed to be giving or lending funds to, otherwise financing or having a financial interest in a competitor. In the event that any Person in which the executive has any financial or other interest directly or indirectly enters into the Subject Business in the Territory during the Noncompete Period, the Executive shall divest all of his interest (other than any amount permitted under this paragraph) in such Person within 30 days after such Person enters into the Subject Business in the Territory.
(b) The Executive covenants and agrees that during the period commencing with the date of this Agreement and ending on the first anniversary of the Termination Date, the Executive will not, directly or indirectly, either for himself or for any other Person (i) solicit any employee of the Company to leave or terminate his or her employment with the Company or employ to establish a relationship with a Competitor. This Article 6.3 shall apply to the then-current employees of the Company and any such individual during his or her who was employed by the Company at any time in the forty-five (45) day period immediately prior to Executive’s last day of employment with the Company Company. If Executive violates this provision, then the duration of the restriction set forth in this provision shall be extended by the period of time during which Executive was not in compliance with this provision, provided that, except by order of a court of competent jurisdiction, this restriction shall not apply past the two-year anniversary of the last date of Executive’s employment with the Company.
6.4 During Executive’s employment and for a period of six months one year after such individual terminates termination of Executive’s employment with the Company for any reason, under any circumstance, by either party, whether voluntary or involuntary, Executive shall not solicit, engage, or induce (or attempt to do so, directly or indirectly) any vendor, supplier, sales agent or buying agent of the Company to commence work on behalf of, or to establish a relationship with, a Competitor or to sever or materially alter his/her/its relationship with the Company. The post-termination obligations of this Article 6.4 shall apply to the vendors, (ii) solicit any supplier to suppliers, sales agents and buying agents of the Company as of the Termination Date date of Executive’s termination and at any time in the one-year period immediately prior to purchase Executive’s termination date. If Executive violates this provision, then the duration of the restriction set forth in this provision shall be extended by the period of time during which Executive was not in compliance with this provision, provided that, except by order of a court of competent jurisdiction, this restriction shall not apply past the two-year anniversary of the last date of Executive’s employment with the Company.
6.5 If Executive’s employment is involuntarily terminated by the Corporation other than for Cause, the Corporation shall pay Executive the greater of (i) $175,000 or distribute information(ii) six (6) months of Executive’s highest annual salary at any time during the twelve (12) month period preceding the date of Executive’s termination, paid according to the Corporation’s normal payroll schedule and practices and subject to applicable withholdings, deductions, and tax reporting requirements; provided that as a condition to receipt of such severance Executive executes and does not rescind a general release of claims as prepared by the Corporation and in favor of the Company. Further, in the absence of an applicable government subsidy with respect to COBRA coverage and provided that Executive timely elects COBRA and executes and does not rescind the release of claims referred to above, the Company shall continue to pay for the six (6) months following the Executive’s last date of employment the employer portion of the premiums for health and dental insurance coverage under the Company’s group health and dental insurance plans in which Executive was participating on the last date of employment. Executive shall continue to be responsible to pay Executive’s portion of the premiums, if any, for such insurance coverage during this period. The Company will discontinue payments under this Article 6.5 if, and at such time, Executive (i) is covered or eligible to be covered under the health and/or dental insurance policy of a new employer, or (ii) ceases to participate, for whatever reason, in the Company’s group insurance plans. By his signature below, Executive acknowledges and agrees that the Company may modify or terminate its group insurance plans at any time and that Executive shall have the same right to participate in the Company’s group insurance plans only as is provided on an equivalent basis to the Company’s employees. Executive further agrees to promptly provide the Company notice if Executive becomes covered or eligible to be covered under the health and/or dental insurance policy of a new employer. In the event there is a government subsidy with respect to COBRA for which the Company and/or Executive is eligible at time of Executive’s termination of employment, then such subsidy shall take precedence and be controlling and the Company shall not be obligated to pay the employer portion of premiums as described above but only to comply with the subsidy criteria.
6.6 Executive promises and agrees not to disparage the Company and the Company’s officers, directors, employees, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by the Company, or (iii) make any disparaging statements concerning the Company or its officers, directors or employees, to any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of the Company, as such relationship relates to the Company's conduct of the Subject Businessservices.
(c) The Executive understands that the foregoing restrictions may limit the Executive's ability to earn a livelihood in a business similar to the business of the Company, but the Executive nevertheless believes that the Executive has received and will receive sufficient consideration and other benefits as an employee of the Company and as otherwise provided hereunder to clearly justify such restrictions which, in any event (given the Executive's education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.
Appears in 1 contract
Noncompetition Nonsolicitation and Nondisparagement. The Executive acknowledges and agrees with the Company that, that during the course of the Executive's employment with the Company, the Executive has had and will continue to have the opportunity to develop relationships with existing employees, customers and other business associates of the Company, which relationships constitute goodwill of the Company, and the Executive acknowledges and agrees that the Company would be irreparably damaged if the Executive were to take actions that would damage or misappropriate such goodwill. The Executive accordingly covenants and agrees as follows:
(a) The Executive acknowledges that the Company currently conduct conducts throughout the United States (the "Territory") the business of direct marketing merchandise and membership services including without limitation customer segmentation and modeling (the "Subject Business"). Accordingly, in consideration during the term of the covenants Executive's employment with the Company and (i) prior to a Change of Control, for a period equal to the longer of one year after the Termination Date or the balance of the term of this Agreement under paragraph 2(a) as if no termination of employment occurred but notice of termination of the automatic extension was given in the event of a voluntary resignation under paragraph 3(e) or a termination by the Company pursuant to this Agreementfor Cause under paragraph 3(b), from the date hereof or (ii) after a Change of Control, until the first anniversary of the Termination Date (the "Noncompete Period"), the Executive shall not, directly or indirectly, enter into, engage in, assist, give or lend funds to or otherwise finance, be employed by or consult with, or have a financial or other interest in, any business which engages in the Subject Business and markets markets, programs, products or services similar to those of the Company as of the Termination Date, whether for or by himself or as an independent contractor, agent, stockholder, partner or joint venturer for any other Person, provided that the aggregate ownership by the Executive of no more than two percent of the outstanding equity securities of any Person, which securities are traded on a national or foreign securities exchange, quoted on the Nasdaq Stock Market or other automated quotation system or, in the case of the Company, of no more than twenty-five percent of the Company's outstanding equity securities shall not be deemed to be giving or lending funds to, otherwise financing or having a financial interest in a competitor. In the event that any Person in which the executive has any financial or other interest directly or indirectly enters into the Subject Business in the Territory during the Noncompete Period, the Executive shall divest all of his interest (other than any amount permitted under this paragraph) in such Person within 30 days after such Person enters into the Subject Business in the Territory.
(b) The Executive covenants and agrees that during the period commencing with the date of this Agreement and ending (i) on the third anniversary of the Termination Date if the Termination Date occurs prior to a Change in Control, or (ii) on the first anniversary of the Termination DateDate if the Termination Date occurs on or after a Change in Control, the Executive will not, directly or indirectly, either for himself or for any other Person (i) solicit any employee of the Company to terminate his or her employment with the Company or employ any such individual during his or her employment with the Company and for a period of six months after such individual terminates employment with the Company, (ii) solicit any supplier to the Company as of the Termination Date to purchase or distribute information, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by the Company, or (iii) make any disparaging statements concerning the Company or its officers, directors or employees, employees to any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of the Company, as such relationship relates to the Company's conduct of the Subject Business.
(c) The Executive understands that the foregoing restrictions may limit the Executive's ability to earn a livelihood in a business similar to the business of the Company, but the Executive nevertheless believes that the Executive has received and will receive sufficient consideration and other benefits as an employee of the Company and as otherwise provided hereunder to clearly justify such restrictions which, in any event (given the Executive's education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.
Appears in 1 contract
Noncompetition Nonsolicitation and Nondisparagement. The Executive acknowledges and agrees with the Company that, during the course of the Executive's employment with the Company, the Executive has had and will continue to have the opportunity to develop relationships with existing employees, customers and other business associates of the Company, which relationships constitute goodwill of the Company, and the Executive acknowledges and agrees that the Company would be irreparably damaged if the Executive were to take actions that would damage or misappropriate such goodwill. The Executive accordingly covenants and agrees as follows:
(a) The Executive acknowledges that For a period of five (5) years after the Company currently conduct throughout Closing Date, none of any Seller, Design Partners nor any Principal shall without the prior written consent of Buyer: (i) solicit for employment any employee of any Seller who continued employment with Buyer after the Closing Date; (ii) directly or indirectly, alone or as a member of a partnership, or as an officer, stockholder (owning more than five percent of outstanding stock), corporate director, employee, consultant, or representative of any company or entity, compete with Buyer within the United States of America, Canada, the United Kingdom, Europe, Korea, China or Southeast Asia (the "“Territory"”), in the Proscribed Business as conducted by Sellers or Foreign Subsidiaries prior to the Closing or the Brandimage division of Schawk after the Closing; or (iii) perform any act which would divert from Buyer to any person or entity in which he has an interest or by whom he is employed, any trade or business with any customer with whom any Seller had any contact or association during the three year preceding the date hereof, or with any party whose identity or potential as a customer of any Seller was confidential or learned by Sellers or Principals during any period while each Principal was employed by or was a consultant to a Seller or the Brandimage division of Schawk. Notwithstanding the foregoing, the restrictions contained in this Agreement shall not apply to any business or activity acquired by Design Partners or Principals, which is not primarily engaged in the Proscribed Business; so long as Design Partners or Principals use best efforts to divest that portion of direct marketing merchandise any such business which would otherwise violate the non-solicitation provisions contained herein within a reasonable period after acquiring such business. Further, Sellers, Design Partners or Principals, as applicable, shall provide Buyer with a bona fide “first look” to purchase any such business unit or division. In the event that, based on such “first look,” Buyer makes a bona fide offer for such business unit or division, which offer is not accepted by Sellers, Design Partners or Principals, as applicable, then Sellers, Design Partners or Principals, as applicable, shall provide Buyer with a right of first refusal with respect to any offer for such business unit or division that Sellers, Design Partners or Principals are so willing to accept. Buyer shall have ten (10) business days to exercise such right by providing Design Partners or its successor with a binding written offer accepting the third-party offer on its exact terms; absent such timely exercise, Buyer’s right shall be extinguished with respect to that specific business unit or division being offered for sale, provided, further, that such right shall be revived in the event the relevant third-party offer is not consummated within one hundred eighty (180) days thereafter.
(b) Design Partners and membership services including without limitation customer segmentation each Principal acknowledges that by reason of its or his affiliation with Sellers it and modeling he has had access to Sellers’ products, markets and business and financial information which Sellers considers to be confidential or proprietary (collectively, the "Subject Business"“Confidential Information”). AccordinglySellers, in consideration Design Partners and each Principal covenant and agree that such Confidential Information is included within the Assets and they shall not, for the shorter period of two (2) years after the covenants of the Company pursuant to this Agreement, from Closing Date or the date hereof until the first anniversary information becomes available in the public domain other than as a result of the Termination Date wrongful disclosure by a Seller or a Principal (the "Noncompete Period"and in any event excluding information of a general industry nature or becoming otherwise available through a different source), the Executive shall not, directly or indirectly, enter into, engage in, assist, give or lend funds to or otherwise finance, be employed by or consult with, or have a financial or other interest in, any business which engages in the Subject Business and markets programs, products or services similar to those of the Company as of the Termination Date, whether for or by himself or as an independent contractor, agent, stockholder, partner or joint venturer for any other Person, provided that the aggregate ownership by the Executive of no more than two percent of the outstanding equity securities of any Person, which securities are traded on a national or foreign securities exchange, quoted on the Nasdaq Stock Market or other automated quotation system shall not be deemed to be giving or lending funds to, otherwise financing or having a financial interest in a competitor. In the event that any Person in which the executive has any financial or other interest directly or indirectly enters into the Subject Business in the Territory during the Noncompete Period, the Executive shall divest all of his interest (other than any amount permitted under this paragraph) in such Person within 30 days after such Person enters into the Subject Business in the Territory.
(b) The Executive covenants and agrees that during the period commencing with the date of this Agreement and ending on the first anniversary of the Termination Date, the Executive will not, directly use for their own behalf or indirectly, either for himself or for any other Person (i) solicit any employee of the Company to terminate his or her employment with the Company or employ any such individual during his or her employment with the Company and for a period of six months after such individual terminates employment with the Company, (ii) solicit any supplier to the Company as of the Termination Date to purchase or distribute information, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by the Company, or (iii) make any disparaging statements concerning the Company or its officers, directors or employees, divulge to any lessorthird party any Confidential Information of Sellers. Sellers, lessee, vendor, supplier, customer, distributor, employee, consultant Design Partners and Principals agree to deliver to Buyer at the Closing all material (and all copies thereof) which contains or other business associate of the Company, as such relationship relates to the Company's conduct of the Subject BusinessConfidential Information.
(c) The Executive understands that the foregoing restrictions may limit the Executive's ability to earn a livelihood in a business similar to the business of the Company, but the Executive nevertheless believes that the Executive has received and will receive sufficient consideration and other benefits as an employee of the Company and as otherwise provided hereunder to clearly justify such restrictions which, in any event (given the Executive's education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.
Appears in 1 contract
Noncompetition Nonsolicitation and Nondisparagement. The Executive acknowledges and agrees with the Company that, during the course of the Executive's employment with the Company, the Executive has had and will continue to have the opportunity to develop relationships with existing employees, customers and other business associates of the Company, which relationships constitute goodwill of the Company, and the Executive (a) Seller acknowledges and agrees that the Company would be irreparably damaged if the Executive were to take actions that would damage or misappropriate such goodwill. The Executive accordingly covenants and agrees as follows:
(a) The Executive acknowledges that the Company currently conduct throughout Business is conducted within the United States and throughout the world (the "“Territory"”) and that the business Business’ reputation and goodwill are an integral part of direct marketing merchandise its success throughout the Territory. If Seller deprives Buyer of any of the Business’ goodwill or in any manner utilizes its reputation and membership services including without limitation customer segmentation and modeling (goodwill in competition with the "Subject Business"), Buyer will be deprived of the benefits it has bargained for pursuant to the Transaction Documents. Accordingly, in consideration of the covenants of the Company pursuant as an inducement for Buyer to enter into this Agreement, from the date hereof until the first anniversary of the Termination Date (the "Noncompete Period"), the Executive shall not, directly or indirectly, enter into, engage in, assist, give or lend funds to or otherwise finance, be employed by or consult with, or have a financial or other interest in, any business which engages in the Subject Business and markets programs, products or services similar to those of the Company as of the Termination Date, whether for or by himself or as an independent contractor, agent, stockholder, partner or joint venturer for any other Person, provided that the aggregate ownership by the Executive of no more than two percent of the outstanding equity securities of any Person, which securities are traded on a national or foreign securities exchange, quoted on the Nasdaq Stock Market or other automated quotation system shall not be deemed to be giving or lending funds to, otherwise financing or having a financial interest in a competitor. In the event that any Person in which the executive has any financial or other interest directly or indirectly enters into the Subject Business in the Territory during the Noncompete Period, the Executive shall divest all of his interest (other than any amount permitted under this paragraph) in such Person within 30 days after such Person enters into the Subject Business in the Territory.
(b) The Executive Seller covenants and agrees that during the period commencing with beginning on the date of this Agreement Closing Date and ending on the first fifth (5th) anniversary of the Termination DateClosing Date (the “Restricted Period”), the Executive Seller or its Affiliates, or any of their respective officers, directors or shareholders, will not, directly or indirectly, either for himself invest in, own, manage, operate, finance, control, advise, render services (including employment or for consulting services) to any Person engaged in or planning to become engaged in a Competitive Business. For purposes of this Section 7.4, a Person shall be deemed to be engaged in a “Competitive Business” if such Person or any of such Person’s Affiliates is engaged directly or indirectly in: (A) providing, performing, offering, designing, developing, manufacturing, assembling, promoting, selling, supplying, distributing, reselling, installing, supporting, leasing or subleasing any Products, or (B) any other Person business or activity that competes in any material respect with the Products; provided, however, that Buyer acknowledges and agrees that Seller’s development, manufacture, marketing and sale of plate-based solid phase extraction instruments, such as Seller’s existing Sciclone® and Zephyr® instruments, shall not be deemed to be a Competitive Business for purposes of this Section 7.4. Notwithstanding anything in this Section 7.4 to the contrary, activities in accordance with the terms of the Transition Services Agreement and Contract Manufacturing Agreement shall not be deemed to be a Competitive Business or to otherwise violate the terms of this Section 7.4. Notwithstanding the foregoing, Seller and its Affiliates may, without violating this Section 7.4, own, as a passive investment, shares of capital stock of a Competitive Business if: (i) solicit any employee such shares are actively traded on an established national securities market in the United States; (ii) the number of shares of such corporation’s capital stock that are owned beneficially (directly or indirectly) by the Seller and the number of shares of such corporation’s capital stock that are owned beneficially (directly or indirectly) by the Seller’s Affiliates collectively represent less than one percent of the Company total number of shares of such corporation’s capital stock outstanding.
(b) During the Restricted Period, Seller covenants and agrees that it will not, directly or indirectly: (i) solicit, induce or contact, or attempt to solicit, induce or contact, any Person that is a vendor to or a customer of the Business to become a vendor to or a customer of any Competitive Business, (ii) recruit, solicit or induce, or attempt to recruit, solicit, or induce, any employee, independent contractor, agent or consultant of the Buyer or the Business to terminate his or her employment employment, or otherwise cease any relationship, with the Company Buyer or employ any such individual during his or her employment with the Company and for a period of six months after such individual terminates employment with the Company, (ii) solicit any supplier to the Company as of the Termination Date to purchase or distribute information, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by the Company, Business; or (iii) make solicit, induce or contact, or attempt to solicit, induce or contact any disparaging statements concerning Person to do anything Portions of this Exhibit were omitted and have been filed separately with the Company Secretary of the Commission pursuant to the Registrant’s application requesting confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended. from which Seller is restricted by reason of this Section 7.4. The term “customer” shall include: (i) customers that have used the products and services of Business within the five (5) year period prior to the Closing Date; and (ii) any prospective customers identified as such by Seller prior to the Closing Date. During the Restricted Period, Buyer covenants and agrees that it will not, directly or its officersindirectly recruit, directors solicit or employeesinduce, or attempt to recruit, solicit, or induce, any lessor, lessee, vendor, supplier, customer, distributor, employee, independent contractor, agent or consultant of Seller to terminate his or other business associate of the Companyher employment, as such relationship relates to the Company's conduct of the Subject Businessor otherwise cease any relationship, with Seller.
(c) After the Closing Date, Seller covenants and agrees that it will not make any statement or other communication that impugns or attacks the reputation or character of the Business or damages the goodwill of the Business, take any action that would interfere with any contractual or customer or supplier relationships conveyed to Buyer as part of the Purchased Assets.
(d) From and after the Closing Date Seller shall (i) deliver and/or convey to Buyer any and all inquiries, requests for Products or sales leads received by it as soon as reasonably possible, and (ii) shall cooperate with Buyer in responding to any such requests or inquires.
(e) The Executive understands parties hereto agree that the foregoing restrictions may limit covenants impose a reasonable restraint on Seller or Buyer, as applicable, in light of the Executive's ability to earn a livelihood in a business similar to the activities and business of the Companyparties on the date of execution of this Agreement. It is expressly agreed that if any restrictions set forth herein are found by any court to be unreasonable because they are too broad in any respect, but then and in each such case, the Executive remaining restrictions herein contained shall nevertheless believes that remain effective, and this Agreement, or any portion thereof, shall be considered to be amended so as to be considered reasonable and enforceable by such court, and the Executive has received and will receive sufficient consideration and other benefits as an employee court shall specifically have the right to restrict the business, geographical or temporal scope of such restrictions to any portion of the Company business or geographic areas or time period described above to the extent the court deems such restriction to be necessary to cause the covenants to be enforceable, and as otherwise provided hereunder to clearly justify in such restrictions which, in any event (given the Executive's education, skills and ability)event, the Executive does not believe would prevent him from otherwise earning a livingcovenants shall be enforced to the extent so permitted.
Appears in 1 contract
Samples: Asset Purchase Agreement (Caliper Life Sciences Inc)
Noncompetition Nonsolicitation and Nondisparagement. The 6.1 During Executive’s employment, Executive acknowledges and agrees shall not plan, organize or engage in any business competitive with the Company that, during the course of the Executive's employment with the Company, the Executive has had and will continue to have the opportunity to develop relationships with existing employees, customers and other business associates of the Company, which relationships constitute goodwill of the Company, and the Executive acknowledges and agrees that or any product or service marketed or planned for marketing by the Company would be irreparably damaged if or assist or work with any other person or entity to do so.
6.2 During Executive’s employment and for the Executive were to take actions that would damage or misappropriate such goodwill. The Executive accordingly covenants and agrees as follows:
(a) The Executive acknowledges that the Company currently conduct throughout the United States (the "Territory") the business of direct marketing merchandise and membership services including without limitation customer segmentation and modeling (the "Subject Business"). AccordinglySeverance Period, in consideration of the covenants of the Company pursuant to this Agreement, from the date hereof until the first anniversary of the Termination Date (the "Noncompete Period"), the Executive shall not, without the prior written permission of the Corporation’s Board, (i) directly or indirectly, enter into, indirectly engage in, assist, give in activities with a Competitor or lend funds to or otherwise finance, be employed by or consult with, or have (ii) own (whether as a financial or other interest in, any business which engages in the Subject Business and markets programs, products or services similar to those of the Company as of the Termination Date, whether for or by himself or as an independent contractor, agent, stockholdershareholder, partner or joint venturer for otherwise, other than as a 1% or less shareholder of a publicly held company) any other Person, provided that the aggregate ownership by the Executive of no more than two percent of the outstanding equity securities of any Person, which securities are traded on a national or foreign securities exchange, quoted on the Nasdaq Stock Market or other automated quotation system shall not be deemed to be giving or lending funds to, otherwise financing or having a financial interest in a competitor. In the event that any Person in which the executive has any financial Competitor, or other interest directly (iii) be connected as an officer, director, advisor, consultant, agent or indirectly enters into the Subject Business employee or participate in the Territory during management of any Competitor. If Executive is interested in pursuing any activity that may violate this provision, Executive shall bring that situation to the Noncompete attention of the Corporation’s CEO so that the parties can consider and discuss in advance whether Executive’s proposed activity would violate this provision and/or whether some accommodation might be possible that would allow Executive to engage in such activity while still protecting the Corporation and its subsidiaries’ legitimate interests.
6.3 During Executive’s employment and for the Severance Period, the Executive shall divest all of his interest not solicit, entice, encourage, or induce (other than any amount permitted under this paragraph) in such Person within 30 days after such Person enters into the Subject Business in the Territory.
(b) The Executive covenants and agrees that during the period commencing with the date of this Agreement and ending on the first anniversary of the Termination Date, the Executive will notor attempt to do so, directly or indirectly), either for himself or for any other Person (i) solicit any employee of the Company to leave or terminate his or her employment with the Company or employ any such individual during his or her employment to establish a relationship with a Competitor. This Section 6.3 shall apply to the then-current employees of the Company and for a any individual who was employed by the Company at any time in the forty-five (45) day period immediately prior to Executive’s last day of six months after such individual terminates employment with the Company.
6.4 During Executive’s employment and for the Severance Period, Executive shall not solicit, engage, or induce (iior attempt to do so, directly or indirectly) solicit any supplier vendor, supplier, sales agent or buying agent of the Company to commence work on behalf of, or to establish a relationship with, a Competitor or to sever or materially alter his/her/its relationship with the Company. The post-termination obligations of this Section 6.4 shall apply to the vendors, suppliers, sales agents and buying agents of the Company as of the Termination Date date of Executive’s termination and at any time in the one-year period immediately prior to purchase or distribute informationExecutive’s termination date.
6.5 If Executive’s employment is involuntarily terminated by the Company other than for Cause, products or services the Company shall pay Executive ____ months (the “Severance Period”) of or on behalf Executive’s highest annual salary at any time during the twelve (12) month period preceding the date of Executive’s termination, paid according to the Corporation’s normal payroll schedule and practices and subject to applicable withholdings, deductions, and tax reporting requirements; provided that as a condition to receipt of such severance Executive executes and does not rescind a general release of claims in favor of the Company and in the form attached as Exhibit A hereto or a substantially similar form prepared by the Corporation (a “General Release”). Additionally, Executive shall receive any annual bonus earned by Executive for the prior fiscal year, regardless of whether Executive is employed on the date the bonus is actually paid, so long as Executive was employed on the last day of the fiscal year. The Company shall pay such annual bonus to Executive in the ordinary course of business, but no later than 120 days after the close of the fiscal year.
6.6 Notwithstanding the foregoing, if Executive’s employment is terminated by (i) the Company or its successor without Cause up to one hundred and eighty (180) days prior to a Change in Control or upon or within twelve (12) months following a Change in Control or (ii) by Executive by resignation with Good Reason upon or within twelve (12) months following a Change in Control, and provided that as a condition to receipt of such other Person that are competitive with severance Executive executes and does not rescind a General Release, Executive shall be entitled to receive from the informationCompany or its successor (A) a lump sum payment equivalent to ___ months of Executive’s highest annual salary at any time during the twelve (12) month period preceding the date of Executive’s termination, products or services provided adjusted for any severance payments previously made to Executive by the Company, and (B) ____ times Executive’s then current on-target bonus, adjusted for any severance payments previously made by the Company. If Executive’s termination occurs on or after the Change in Control, the lump sum payments under this Section 6.6 shall be made by the Company or its successor no later than sixty (60) days following Executive’s termination date. If Executive is involuntarily terminated, commences severance benefits under Section 6.5 above and subsequently becomes eligible for severance under this Section 6.6 upon the occurrence of a Change in Control within one hundred and eighty (180) days following termination, Executive’s unpaid severance benefits shall be adjusted as provided under this Section 6.6 and any remaining unpaid benefits shall be paid in a single lump sum no later than sixty (60) days following the Change in Control.
6.7 Notwithstanding the provisions of Sections 6.5 and 6.6 of this Agreement, the Company’s obligation to make the cash severance payment described in Sections 6.5 and 6.6 of this Agreement shall be reduced by any cash compensation received by the Executive from other employment or self-employment during the period during which severance is paid, and, in this regard, the Executive shall notify the Company in writing of [her/his] acceptance of such other employment or self-employment within five (5) business days after accepting such other employment or self-employment. If the Company has already made the cash severance payment to Executive (as a lump sum under Section 6.6), then Executive shall be obligated to return to the Company a portion of the severance payments that are reduced pursuant to this Section 6.7.
6.8 In the event that any benefits payable to Executive pursuant to this Agreement or any other benefit plan or agreement (“Payments”) (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this Section 6.8 would be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions (the “Excise Tax”), then Executive’s Payments shall be provided to Executive as to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax. In the event that the payments and/or benefits are to be reduced pursuant to this Section 6.8, such payments and benefits shall be reduced such that the amount the Payments are reduced to as close to the amount that is $1.00 below the amount where the Excise Tax would be required to be paid as is reasonably possible. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Section 409A of the Code and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero. For purposes of making the calculations required by this Section 6.8, the Company’s finance personnel responsible for the calculation may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Corporation and Executive shall furnish to such finance personnel such information and documents as the finance personnel may reasonably request in order to make a determination under this Section 6.8.
6.9 This Agreement shall be interpreted and construed in a manner that avoids the imposition of taxes and other penalties under Section 409A of the Code (such taxes and other penalties referred to collectively as “409A Penalties”). In the event that the Corporation determines that the terms of this Agreement would subject Executive to 409A Penalties, the Corporation and Executive shall cooperate diligently to amend the terms of this Agreement to avoid such 409A Penalties, to the extent possible; provided, however, that this Section 6.9 shall not create any obligation on the part of the Company to adopt any such amendment or take any such other action. All references in this Agreement to Executive’s termination or cessation of employment shall mean a “separation from service” within the meaning of Section 409A of the Code. Each payment (including any right to a series of installment payments) under this Agreement shall be considered a separate payment for purposes of Section 409A of the Code. Any payment that is “deferred compensation” within the meaning of and subject to Section 409A of the Code which is conditioned upon Executive’s execution of a release and which may become payable during a designated period that begins in one taxable year and carries over into a second taxable year shall be paid or begin payment, as applicable, in the second taxable year. Any payment that is “deferred compensation” which is accelerated due to a Change in Control shall not be accelerated unless such Change in Control is a “change in control event” as defined under Section 409A. Notwithstanding any other provision in this Agreement, if on the date of Executive’s “separation from service”, Executive is a “specified employee,” as defined in Section 409A of the Code, then to the extent any amount payable under this Agreement upon Executive’s separation from service would be a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code, such payment shall be delayed until the earlier to occur of (x) the first day of the seventh month following Executive’s separation from service or (y) the date of Executive’s death (payable in a lump-sum amount equal to the cumulative amount that would have otherwise been payable to Executive during such period). Notwithstanding any of the foregoing provisions of this Section 6.9, under no circumstances shall the Company be responsible for any taxes, penalties, interest or other losses or expenses incurred by Executive with respect to Section 409A of the Code.
6.10 To the extent permitted by Section 409A of the Code, any severance to which the Executive is otherwise entitled pursuant to this Article 6 shall be (i) reduced by amounts outstanding under any indebtedness, obligations or liabilities owed by the Executive to the Company; (ii) paid in lieu of any severance pay or benefits under any other severance pay plan, program, or policy of the Company, and (iii) reduced and offset by any severance pay or benefits, or similar amounts, payable to the Executive due to his termination of employment under any labor, social or other governmental plan, program, law or policy, and should such other payments or benefits described in clause (ii) or (iii) make of this sentence be payable, payments under this Agreement shall be reduced accordingly or, alternatively, payments previously paid or provided under this Agreement will be treated as having been paid or provided to satisfy such other obligations. Executive agrees to execute any disparaging statements concerning additional documents at the Company or its officers, directors or employees, time of his termination to any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of the Company, as such relationship relates to the Company's conduct of the Subject Businesseffectuate this Section 6.10.
(c) The 6.11 During Executive’s employment and for the Severance Period, Executive understands that the foregoing restrictions may limit the Executive's ability promises and agrees not to earn a livelihood in a business similar to the business of the Company, but the Executive nevertheless believes that the Executive has received and will receive sufficient consideration and other benefits as an employee of disparage the Company and the Company’s officers, directors, employees, products or services.
6.12 If any portion of this Article 6 is determined by an arbitrator or a court to be unenforceable in any respect, it shall be interpreted to be valid to the maximum extent for which it reasonably may be enforced, and enforced as otherwise provided hereunder so interpreted, all as determined by such arbitrator or court in such action. Executive acknowledges the uncertainty of the law in this respect and expressly stipulates that this Agreement is to clearly justify be given the construction that renders its provisions valid and enforceable to the maximum extent (not exceeding its express terms) possible under applicable law.
6.13 Executive agrees that a breach of any of the provisions of Sections 6.1 – 6.4 (the “Restrictive Covenants”) would cause material and irreparable harm to the Company that would be difficult or impossible to measure, and that monetary damages for any such restrictions whichharm would, therefore, be an inadequate remedy. Accordingly, Executive agrees that if Executive breaches any Restrictive Covenant, the Company shall be entitled, in addition to and without limitation upon all other remedies the Company may have under this Agreement, at law or otherwise, to obtain injunctive or other appropriate equitable relief, without bond or other security, including but not limited to restraining any event (given such breach through arbitration. Executive further agrees that the Executive's education, skills and ability), duration of the Restrictive Covenant shall be extended by the same amount of time that Executive does not believe would prevent him from otherwise earning a livingis in breach of that Restrictive Covenant.
Appears in 1 contract
Noncompetition Nonsolicitation and Nondisparagement. The Executive acknowledges and agrees with the Company that, during the course of the Executive's employment with the Company, the Executive has had and will continue to have the opportunity to develop relationships with existing employees, customers and other business associates of the Company, which relationships constitute goodwill of the Company, and the Executive acknowledges and agrees that the Company would be irreparably damaged if the Executive were to take actions that would damage or misappropriate such goodwill. The Executive accordingly covenants and agrees as follows:
(a) The Executive acknowledges that From the Company currently conduct throughout Closing Date until such time as the United States (the "Territory") the business of direct marketing merchandise and membership services including without limitation customer segmentation and modeling (the "Subject Business"). AccordinglyBCA Supply Agreements are terminated in their entirety in accordance with their terms, in consideration of the covenants of the Company pursuant to this Agreement, from the date hereof until the first anniversary of the Termination Date (the "Noncompete Period"), the Executive Seller shall not, anywhere in the world, itself manufacture or directly or indirectly, enter into, engage in, assist, give indirectly own or lend funds to or otherwise finance, be employed by or consult withcontrol any Person engaged in a business, or have manage a financial or other interest inbusiness, any business which engages in the Subject Business and markets programsmanufacture of Restricted Products; provided, products or services similar to those however, that Restricted Products shall in no event include any non-proprietary detail component of the Company an End Item Assembly (as of the Termination Date, whether for or by himself or as an independent contractor, agent, stockholder, partner or joint venturer for any other Person, provided that the aggregate ownership by the Executive of no more than two percent of the outstanding equity securities of any Person, which securities are traded on a national or foreign securities exchange, quoted on the Nasdaq Stock Market or other automated quotation system shall not be deemed to be giving or lending funds to, otherwise financing or having a financial interest in a competitor. In the event that any Person in which the executive has any financial or other interest directly or indirectly enters into the Subject Business such term is defined in the Territory during the Noncompete PeriodSpecial Business Provisions (Sustaining) or any dual-sourced minor sub-assembly parts (e.g., the Executive shall divest all of his interest (other than any amount permitted under this paragraph) in such Person within 30 days after such Person enters into the Subject Business in the Territory“Boeing standards”, screws, brackets, clips, etc.).
(b) The Executive covenants and agrees that during Notwithstanding anything in Section 6.12(a) to the period commencing with the date of this Agreement and ending on the first anniversary of the Termination Date, the Executive will not, directly or indirectly, either for himself or for any other Person contrary:
(i) solicit Nothing herein shall be construed so as to preclude Seller and its Affiliates from owning, controlling or managing a modification, maintenance, repair or overhaul facility (or any employee combination of the Company to terminate his or her employment with the Company or employ any such individual during his or her employment with the Company and foregoing) for a period of six months after such individual terminates employment with the Company, aftermarket products.
(ii) solicit Nothing herein shall be construed so as to preclude Seller and its Affiliates from:
(A) continuing anywhere in the world any supplier type of business conducted by Seller or its Affiliates on the date hereof, which is not part of the Business;
(B) entering into any teaming, joint venture, license or similar agreement or relationship with a Person, except to the Company as extent Seller owns, controls or manages such Person, but in no event shall the foregoing preclude the activities provided for in Section 6.12(b)(i) above; or
(C) providing debt financing to a company, provided that such debt financing is entered into in the ordinary course of the Termination Date business by Seller or an Affiliate of Seller whose principal business includes providing financing to purchase or distribute information, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by the Company, or third parties.
(iii) make any disparaging statements concerning In the Company or its officers, directors or employees, to any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate event Seller completes an acquisition of the Companybusiness or assets of any Person which derived more than ten percent (10%) of its gross revenue for the immediately prior fiscal year from the sale of Restricted Products, as Seller shall, within twenty-four (24) months from such relationship relates to the Company's conduct investment or acquisition, either (A) divest such portion of the Subject Businessnewly acquired business which manufactures Restricted Products; or (B) cease its manufacturing of Restricted Products. In the event Seller completes an acquisition of the business or assets of any Person which derived less than ten percent (10%) of its gross revenue for the immediately prior fiscal year from the sale of Restricted Products, Seller shall be entitled to maintain ownership of such business or assets and continue its business.
(civ) The Executive understands that the foregoing restrictions may limit the Executive's ability covenant not to earn compete set forth in Section 6.12(a) shall be deemed null and void (A) as to a livelihood in a business similar Restricted Product, only for such period of time as pursuant to the business terms of the Company, but the Executive nevertheless believes that the Executive has received and will receive sufficient consideration and other benefits as relevant BCA Supply Agreement Seller is permitted to produce such Restricted Product or obtain such Restricted Product from an employee of the Company and as otherwise provided hereunder to clearly justify such restrictions which, in any event alternative source (given the Executive's education, skills and abilityincluding dual sourcing), the Executive does not believe would prevent him from otherwise earning a living.,
Appears in 1 contract
Samples: Asset Purchase Agreement (Boeing Co)
Noncompetition Nonsolicitation and Nondisparagement. The 6.1 During Executive’s employment, Executive acknowledges and agrees shall not plan, organize or engage in any business competitive with the Company that, during the course of the Executive's employment with the Company, the Executive has had and will continue to have the opportunity to develop relationships with existing employees, customers and other business associates of the Company, which relationships constitute goodwill of the Company, and the Executive acknowledges and agrees that or any product or service marketed or planned for marketing by the Company would be irreparably damaged if or assist or work with any other person or entity to do so.
6.2 During Executive’s employment and for the Executive were to take actions that would damage or misappropriate such goodwill. The Executive accordingly covenants and agrees as follows:
(a) The Executive acknowledges that the Company currently conduct throughout the United States (the "Territory") the business of direct marketing merchandise and membership services including without limitation customer segmentation and modeling (the "Subject Business"). AccordinglySeverance Period, in consideration of the covenants of the Company pursuant to this Agreement, from the date hereof until the first anniversary of the Termination Date (the "Noncompete Period"), the Executive shall not, without the prior written permission of the Corporation’s Board, (i) directly or indirectly, enter into, indirectly engage in, assist, give in activities with a Competitor or lend funds to or otherwise finance, be employed by or consult with, or have (ii) own (whether as a financial or other interest in, any business which engages in the Subject Business and markets programs, products or services similar to those of the Company as of the Termination Date, whether for or by himself or as an independent contractor, agent, stockholdershareholder, partner or joint venturer for otherwise, other than as a 1% or less shareholder of a publicly held company) any other Person, provided that the aggregate ownership by the Executive of no more than two percent of the outstanding equity securities of any Person, which securities are traded on a national or foreign securities exchange, quoted on the Nasdaq Stock Market or other automated quotation system shall not be deemed to be giving or lending funds to, otherwise financing or having a financial interest in a competitor. In the event that any Person in which the executive has any financial Competitor, or other interest directly (iii) be connected as an officer, director, advisor, consultant, agent or indirectly enters into the Subject Business employee or participate in the Territory during management of any Competitor. If Executive is interested in pursuing any activity that may violate this provision, Executive shall bring that situation to the Noncompete attention of the Corporation’s CEO so that the parties can consider and discuss in advance whether Executive’s proposed activity would violate this provision and/or whether some accommodation might be possible that would allow Executive to engage in such activity while still protecting the Corporation and its subsidiaries’ legitimate interests.
6.3 During Executive’s employment and for the Severance Period, the Executive shall divest all of his interest not solicit, entice, encourage, or induce (other than any amount permitted under this paragraph) in such Person within 30 days after such Person enters into the Subject Business in the Territory.
(b) The Executive covenants and agrees that during the period commencing with the date of this Agreement and ending on the first anniversary of the Termination Date, the Executive will notor attempt to do so, directly or indirectly), either for himself or for any other Person (i) solicit any employee of the Company to leave or terminate his or her employment with the Company or employ any such individual during his or her employment to establish a relationship with a Competitor. This Section 6.3 shall apply to the then-current employees of the Company and for a any individual who was employed by the Company at any time in the forty-five (45) day period immediately prior to Executive’s last day of six months after such individual terminates employment with the Company.
6.4 During Executive’s employment and for the Severance Period, Executive shall not solicit, engage, or induce (iior attempt to do so, directly or indirectly) solicit any supplier vendor, supplier, sales agent or buying agent of the Company to commence work on behalf of, or to establish a relationship with, a Competitor or to sever or materially alter his/her/its relationship with the Company. The post-termination obligations of this Section 6.4 shall apply to the vendors, suppliers, sales agents and buying agents of the Company as of the Termination Date date of Executive’s termination and at any time in the one-year period immediately prior to purchase or distribute informationExecutive’s termination date.
6.5 If Executive’s employment is involuntarily terminated by the Company other than for Cause, products or services the Company shall pay Executive 6 months (the “Severance Period”) of or on behalf Executive’s highest annual salary at any time during the twelve (12) month period preceding the date of Executive’s termination, paid according to the Corporation’s normal payroll schedule and practices and subject to applicable withholdings, deductions, and tax reporting requirements; provided that as a condition to receipt of such severance Executive executes and does not rescind a general release of claims in favor of the Company and in the form attached as Exhibit A hereto or a substantially similar form prepared by the Corporation (a “General Release”). Additionally, Executive shall receive any annual bonus earned by Executive for the prior fiscal year, regardless of whether Executive is employed on the date the bonus is actually paid, so long as Executive was employed on the last day of the fiscal year. The Company shall pay such annual bonus to Executive in the ordinary course of business, but no later than 120 days after the close of the fiscal year.
6.6 Notwithstanding the foregoing, if Executive’s employment is terminated by (i) the Company or its successor without Cause up to one hundred and eighty (180) days prior to a Change in Control or upon or within twelve (12) months following a Change in Control or (ii) by Executive by resignation with Good Reason upon or within twelve (12) months following a Change in Control, and provided that as a condition to receipt of such other Person that are competitive with severance Executive executes and does not rescind a General Release, Executive shall be entitled to receive from the informationCompany or its successor (A) a lump sum payment equivalent to 6 months of Executive’s highest annual salary at any time during the twelve (12) month period preceding the date of Executive’s termination, products or services provided adjusted for any severance payments previously made to Executive by the Company, and (B) 0.5 times Executive’s then current on-target bonus, adjusted for any severance payments previously made by the Company. If Executive’s termination occurs on or after the Change in Control, the lump sum payments under this Section 6.6 shall be made by the Company or its successor no later than sixty (60) days following Executive’s termination date. If Executive is involuntarily terminated, commences severance benefits under Section 6.5 above and subsequently becomes eligible for severance under this Section 6.6 upon the occurrence of a Change in Control within one hundred and eighty (180) days following termination, Executive’s unpaid severance benefits shall be adjusted as provided under this Section 6.6 and any remaining unpaid benefits shall be paid in a single lump sum no later than sixty (60) days following the Change in Control.
6.7 Notwithstanding the provisions of Sections 6.5 and 6.6 of this Agreement, the Company’s obligation to make the cash severance payment described in Sections 6.5 and 6.6 of this Agreement shall be reduced by any cash compensation received by the Executive from other employment or self-employment during the period during which severance is paid, and, in this regard, the Executive shall notify the Company in writing of his acceptance of such other employment or self-employment within five (5) business days after accepting such other employment or self-employment. If the Company has already made the cash severance payment to Executive (as a lump sum under Section 6.6), then Executive shall be obligated to return to the Company a portion of the severance payments that are reduced pursuant to this Section 6.7.
6.8 In the event that any benefits payable to Executive pursuant to this Agreement or any other benefit plan or agreement (“Payments”) (i) constitute “parachute payments” within the Xx Xxxxxxx 5 meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this Section 6.8 would be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions (the “Excise Tax”), then Executive’s Payments shall be provided to Executive as to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax. In the event that the payments and/or benefits are to be reduced pursuant to this Section 6.8, such payments and benefits shall be reduced such that the amount the Payments are reduced to as close to the amount that is $1.00 below the amount where the Excise Tax would be required to be paid as is reasonably possible. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Section 409A of the Code and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero. For purposes of making the calculations required by this Section 6.8, the Company’s finance personnel responsible for the calculation may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Corporation and Executive shall furnish to such finance personnel such information and documents as the finance personnel may reasonably request in order to make a determination under this Section 6.8.
6.9 This Agreement shall be interpreted and construed in a manner that avoids the imposition of taxes and other penalties under Section 409A of the Code (such taxes and other penalties referred to collectively as “409A Penalties”). In the event that the Corporation determines that the terms of this Agreement would subject Executive to 409A Penalties, the Corporation and Executive shall cooperate diligently to amend the terms of this Agreement to avoid such 409A Penalties, to the extent possible; provided, however, that this Section 6.9 shall not create any obligation on the part of the Company to adopt any such amendment or take any such other action. All references in this Agreement to Executive’s termination or cessation of employment shall mean a “separation from service” within the meaning of Section 409A of the Code. Each payment (including any right to a series of installment payments) under this Agreement shall be considered a separate payment for purposes of Section 409A of the Code. Any payment that is “deferred compensation” within the meaning of and subject to Section 409A of the Code which is conditioned upon Executive’s execution of a release and which may become payable during a designated period that begins in one taxable year and carries over into a second taxable year shall be paid or begin payment, as applicable, in the second taxable year. Any payment that is “deferred compensation” which is accelerated due to a Change in Control shall not be accelerated unless such Change in Control is a “change in control event” as defined under Section 409A. Notwithstanding any other provision in this Agreement, if on the date of Executive’s “separation from service”, Executive is a “specified employee,” as defined in Section 409A of the Code, then to the extent any amount payable under this Agreement upon Executive’s separation from service would be a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code, such payment shall be delayed until the earlier to occur of (x) the first day of the seventh month following Executive’s separation from service or (y) the date of Executive’s death (payable in a lump-sum amount equal to the cumulative amount that would have otherwise been payable to Executive during such period). Notwithstanding any of the foregoing provisions of this Section 6.9, under no circumstances shall the Company be responsible for any taxes, Xx Xxxxxxx 6 penalties, interest or other losses or expenses incurred by Executive with respect to Section 409A of the Code.
6.10 To the extent permitted by Section 409A of the Code, any severance to which the Executive is otherwise entitled pursuant to this Article 6 shall be (i) reduced by amounts outstanding under any indebtedness, obligations or liabilities owed by the Executive to the Company; (ii) paid in lieu of any severance pay or benefits under any other severance pay plan, program, or policy of the Company, and (iii) reduced and offset by any severance pay or benefits, or similar amounts, payable to the Executive due to his termination of employment under any labor, social or other governmental plan, program, law or policy, and should such other payments or benefits described in clause (ii) or (iii) make of this sentence be payable, payments under this Agreement shall be reduced accordingly or, alternatively, payments previously paid or provided under this Agreement will be treated as having been paid or provided to satisfy such other obligations. Executive agrees to execute any disparaging statements concerning additional documents at the Company or its officers, directors or employees, time of his termination to any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of the Company, as such relationship relates to the Company's conduct of the Subject Businesseffectuate this Section 6.10.
(c) The 6.11 During Executive’s employment and for the Severance Period, Executive understands that the foregoing restrictions may limit the Executive's ability promises and agrees not to earn a livelihood in a business similar to the business of the Company, but the Executive nevertheless believes that the Executive has received and will receive sufficient consideration and other benefits as an employee of disparage the Company and the Company’s officers, directors, employees, products or services.
6.12 If any portion of this Article 6 is determined by an arbitrator or a court to be unenforceable in any respect, it shall be interpreted to be valid to the maximum extent for which it reasonably may be enforced, and enforced as otherwise provided hereunder so interpreted, all as determined by such arbitrator or court in such action. Executive acknowledges the uncertainty of the law in this respect and expressly stipulates that this Agreement is to clearly justify be given the construction that renders its provisions valid and enforceable to the maximum extent (not exceeding its express terms) possible under applicable law.
6.13 Executive agrees that a breach of any of the provisions of Sections 6.1 – 6.4 (the “Restrictive Covenants”) would cause material and irreparable harm to the Company that would be difficult or impossible to measure, and that monetary damages for any such restrictions whichharm would, therefore, be an inadequate remedy. Accordingly, Executive agrees that if Executive breaches any Restrictive Covenant, the Company shall be entitled, in addition to and without limitation upon all other remedies the Company may have under this Agreement, at law or otherwise, to obtain injunctive or other appropriate equitable relief, without bond or other security, including but not limited to restraining any event (given such breach through arbitration. Executive further agrees that the Executive's education, skills and ability), duration of the Restrictive Covenant shall be extended by the same amount of time that Executive does not believe would prevent him from otherwise earning a livingis in breach of that Restrictive Covenant.
Appears in 1 contract
Noncompetition Nonsolicitation and Nondisparagement. The Executive acknowledges and agrees with the Company that, during the course of the Executive's employment with the Company, the Executive has had and will continue to have the opportunity to develop relationships with existing employees, customers and other business associates of the Company, which relationships constitute goodwill of the Company, and the Executive acknowledges and agrees that the Company would be irreparably damaged if the Executive were to take actions that would damage or misappropriate such goodwill. The Executive accordingly covenants and agrees as follows:
(a) The Executive acknowledges Seller Parties hereby acknowledge and agree that the Company currently conduct throughout covenants and agreements set forth in this Section 6.06 are a material inducement to the United States (the "Territory") the business of direct marketing merchandise and membership services including without limitation customer segmentation and modeling (the "Subject Business"). Accordingly, in consideration of the covenants of the Company pursuant Purchaser to enter into this Agreement, from to perform its obligations hereunder, and to consummate the date hereof until transactions contemplated by this Agreement, and that the first anniversary Purchaser would incur a significant loss of the Termination Date goodwill being purchased as part of the transactions contemplated by this Agreement if any Seller Party or its Affiliates were to breach any of the provisions of this Section 6.06 applicable to them. Therefore, in order to facilitate the consummation of the transactions contemplated by this Agreement, it is agreed that:
(i) for a period of five (5) years from and after the "Noncompete Period")Closing, the Executive each Seller Party shall not, and will cause its Affiliates not to, directly or indirectly, enter into, engage in, assist, give in or lend funds to compete with all or otherwise finance, be employed by or consult with, or have a financial or other interest in, any business which engages in the Subject Business and markets programs, products or services similar to those portion of the Company Business as conducted as of the Termination Closing Date, whether in the United States of America; provided, however, that the passive ownership of less than 3% of the outstanding stock of any publicly-traded corporation or other entity will not be deemed, solely by reason thereof, a violation of this Section 6.06; provided, further, notwithstanding any other provision of this Agreement to the contrary, the Seller Parties shall be permitted to engage in real estate design, development (including, but not limited to, those utilizing manufactured or modular housing as part of the real estate development), construction and sale activities, including the purchase and sale of manufactured or modular homes within a Seller Party owned or managed manufactured or modular home community and lending thereto (other than (A) lending that is competitive with the Business that involves any new extensions of credit after the date of this Agreement, (B) floor plan lending, or (C) lending that is competitive with the Business, unless such Seller Party obtains Purchaser’s prior written consent (which may be withheld in Purchaser’s sole discretion)).
(ii) for a period of five (5) years from and after the Closing, each Seller Party shall not, and will cause its Affiliates not to, directly or by himself or indirectly (A) solicit, recruit, offer employment, employ, engage as an independent contractor, agent, stockholder, partner lure or joint venturer for any other Person, provided that the aggregate ownership by the Executive of no more than two percent of the outstanding equity securities of entice away any Person, which securities are traded on other than Xxxx Xxxxx and Xxxxx Xxxxxxx, who is or was an employee or independent contractor of Seller at any time during the twelve (12) month period preceding the Closing Date, or encourage any such Person to terminate or diminish his, her or its relationship with Seller or with the Purchaser, or (B) without Purchaser’s prior written consent, solicit, encourage, initiate or participate in discussions or negotiations with any Person, other than the Joint Ventures, who is or was a national or foreign securities exchangeclient, quoted on the Nasdaq Stock Market customer, vendor, supplier or other automated quotation system business partner, or a prospective client, customer, vendor, supplier or other business partner, of Seller at any time during the twelve (12) month period preceding the Closing Date, with respect to the termination or other alteration of his, her or its relationship with Seller;
(iii) each Seller Party shall not, and will use commercially reasonable efforts to cause its Affiliates not be deemed to be giving or lending funds to, otherwise financing make any disparaging statement, either orally or having a financial interest in a competitor. In writing, regarding the event that Purchaser, Seller or the business, products, or services thereof, or any Person in which of the executive has any financial or other interest directly or indirectly enters into the Subject Business in the Territory during the Noncompete Period, the Executive shall divest all of his interest (other than any amount permitted under this paragraph) in such Person within 30 days after such Person enters into the Subject Business in the Territory.Purchaser’s Affiliates; and
(biv) The Executive covenants each Seller Party shall not, and agrees that during will use commercially reasonable effort to cause its Affiliates not to, at any time on or after the period commencing with the date of this Agreement and ending on the first anniversary of the Termination Closing Date, the Executive will not, directly or indirectly, either for himself without the prior written consent of the Purchaser, disclose or for use, any confidential or proprietary information of Seller; provided, however, that the information subject to the foregoing provisions of this sentence will not include any information that (A) is or becomes generally available to, or known by, the public, other than as a result of disclosure in violation hereof; (B) is or becomes available to any Seller Party or its Affiliate on a non-confidential basis from a source other than a Seller Party or any of its Representatives, provided that such source is not known by such Seller Party or such Affiliate, as the case may be, to be bound by a contractual, legal or fiduciary obligation of confidentiality to Seller with respect to such information; (C) has been or is subsequently independently conceived or developed by a Seller Party or its Affiliate without use of or reference to any confidential or proprietary information of Seller; or (D) is required to be disclosed pursuant to any applicable law or order of a Governmental Authority. 57
(b) If the final judgment of a court of competent jurisdiction declares that any term or provision of this Section 6.06 is invalid or unenforceable, the Parties agree that such term or provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law. The provisions of this Section 6.06 are in addition to, and not in limitation of, any other Person (i) solicit similar provisions to which any employee Seller Party is bound. Each Seller Party agrees that, were such Seller Party or its Affiliates to breach any of the Company to terminate his or her employment with provisions of this Section 6.06, the Company or employ any such individual during his or her employment with the Company and for a period of six months after such individual terminates employment with the Company, (ii) solicit any supplier damage to the Company as of the Termination Date to purchase or distribute information, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by the Company, or (iii) make any disparaging statements concerning the Company or Purchaser and its officers, directors or employees, to any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of the Company, as such relationship relates to the Company's conduct of the Subject Business.
(c) The Executive understands that the foregoing restrictions may limit the Executive's ability to earn a livelihood in a business similar to the business of the Company, but the Executive nevertheless believes that the Executive has received and will receive sufficient consideration and other benefits as an employee of the Company and as otherwise provided hereunder to clearly justify such restrictions whichAffiliates would be irreparable. Each Seller Party therefore agrees that, in addition and not in the alternative to its rights under this Agreement and any event (given the Executive's education, skills and ability)other remedies available to it, the Executive does not believe would prevent him from otherwise earning a livingPurchaser shall be entitled to obtain preliminary and permanent injunctive relief restraining any actual or threatened breach of this Section 6.06.
Appears in 1 contract
Noncompetition Nonsolicitation and Nondisparagement. The Executive acknowledges and agrees with the Company that, during the course of the Executive's employment with the Company, the Executive has had and will continue to have the opportunity to develop relationships with existing employees, customers and other business associates of the Company, which relationships constitute goodwill of the Company, and the Executive acknowledges and agrees that the Company would be irreparably damaged if the Executive were to take actions that would damage or misappropriate such goodwill. The Executive accordingly covenants and agrees that upon a Change of Control, termination by Executive for Good Reason or termination with Cause as follows:
(a) The Executive acknowledges that the Company currently conduct conducts throughout the United States (the "Territory") the business of direct marketing merchandise and membership selling membership/enhancement services including without limitation customer segmentation and modeling (the "Subject Business"). Accordingly) accordingly, in consideration of the covenants of the Company pursuant to this Agreement, from the date hereof until the first anniversary of the Executive's Termination Date (the "Noncompete Period"), the Executive shall not, directly or indirectly, enter into, engage in, assist, give or lend funds to or otherwise finance, be employed by or consult with, or have a financial or other interest in, any business “Competitor” (as defined below) which engages in the Subject Business and or markets programs, products or services similar to those of the Company as of Executive's last day of employment with the Termination DateCompany, whether for or by himself or as an independent contractor, agent, stockholder, partner or joint venturer for with any other Personsuch Competitor, provided that the aggregate ownership by the Executive of no more than two percent of the outstanding equity securities of any Person, including any Competitor, which securities are traded on a national or foreign securities exchange, quoted on the Nasdaq Stock Market or other automated quotation system shall not be deemed to be giving or lending funds to, otherwise financing or having a financial interest in a competitor. In As used herein, the event term, “Competitor” means those Persons identified on Exhibit B attached hereto and any company or any business unit of any company that any Person in which the executive has any financial or other interest directly or indirectly enters into the Subject Business receives more than 75% of its annual revenues engaging in the Territory during the Noncompete Period, the Executive shall divest all of his interest (other than any amount permitted under this paragraph) in such Person within 30 days after such Person enters into the Subject Business in the Territory.
(b) The Executive covenants and agrees that during the period commencing with the date of this Agreement and ending on the first anniversary of the Termination Date, the Executive will not, directly or indirectly, either for himself or for any other Person (i) solicit any employee of the Company to terminate his or her employment with the Company or employ any such individual during his or her employment with the Company and for a period of six months after such individual terminates employment with the Company, (ii) solicit any supplier to the Company as of the Termination Date to purchase or distribute information, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by the Company, or (iii) make any disparaging statements concerning the Company or its officers, directors or employees, to any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of the CompanyMembership/Enhancement Services Business. Also, as such relationship relates used herein, Membership/Enhancement Services Business means the sale or marketing of memberships to clubs for which club members/customers pay an annual membership fee which fee is automatically renewed unless the Company's conduct of the Subject Businesscustomer cancels his/her/its membership.
(c) The Executive understands that the foregoing restrictions may limit the Executive's ability to earn a livelihood in a business similar to the business of the Company, but the Executive nevertheless believes that the Executive has received and will receive sufficient consideration and other benefits as an employee of the Company and as otherwise provided hereunder to clearly justify such restrictions which, in any event (given the Executive's education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.
Appears in 1 contract
Samples: Severance and Change of Control Agreement (Provell Inc)
