Noncompetition Nonsolicitation Confidentiality. As a material inducement to the Company to enter into this Agreement and in consideration of the payment by the Company of the compensation detailed herein to Executive: (a) During the period (the "Noncompete Period") beginning on the date hereof and ending on the later of (x) the first anniversary of the Termination Date and (y) if severance payments are owed to Executive by the Company pursuant to Section 4(b)(iii), above, the last date on which such payments are due to be paid to Executive (notwithstanding any reduction in such payments pursuant to Section 4(c)), Executive shall not, without the prior written consent of the Company (which consent may be granted or withheld in the Company's sole discretion), directly or indirectly, Participate in any line of business in which the Business is actively engaged or any line of business competitive with the Business anywhere in the United States and any other country in which the Company does business as of the Closing (the "Competitive Activities"). For purposes of this Agreement, the term "Participate" includes any direct or indirect interest in, or providing any direct or indirect assistance (whether financial, advisory or otherwise) to, any enterprise (or any affiliate thereof), whether as an officer, director, employee, partner, member, sole proprietor, agent, representative, independent contractor, consultant, creditor, stockholders, unitholder, owner or otherwise; provided that the term "Participate" shall not include ownership of less than 2% of the Common Stock of a publicly-held corporation whose Common Stock is traded on a national securities exchange or in the over-the-counter market. The parties agree that, without violating this Section 6(a), Executive may accept employment with any Person which engages in Competitive Activities; provided that such Person's business is diversified (and has separate and distinct divisions) and Executive is employed in a part of its business which does not engage in Competitive Activities; provided further that the Company, prior to Executive accepting such employment, shall receive separate written assurances satisfactory to the Company from the board of directors of such Person and Executive acknowledging that Executive is bound by this Section 6, the terms of which such Person has read, and covenanting that Executive will not render services directly or indirectly in connection with any product, process, system or service of any person or organization other than the Company, in existence or under development, which is the same as or competes with a product, process, system or service upon which Executive has worked during the last two years of Executive's employment by the Company or about which Executive acquires Confidential Information. (b) During the Noncompete Period, Executive (a) except with respect to Executive's personal secretary, shall not, directly or indirectly contact, approach or solicit for the purpose of offering employment to or hiring (whether as an employee, consultant, agent, independent contractor or otherwise) or actually hire any person employed by the Company during the Noncompete Period and (b) shall not induce or attempt to induce any customer or other business relation of the Company to cease doing business with the Company or to engage in any business relationship which might materially harm the Company. (c) Executive acknowledges that certain of the information, observations and data relating to the Company which he possesses or has obtained as an employee, officer, director or stockholder of the Company is the confidential and proprietary property of the Company ("Confidential Information"). Executive agrees that he shall not, directly or indirectly, use for his own purposes or use for or disclose to any third party any of such Confidential Information without the prior written consent of the Company, unless and to the extent that the aforementioned matters (i) become generally known to and available for use by the public other than as a result of a Executive's acts or omissions to act, or (ii) Executive is required by order of a court of competent jurisdiction (by subpoena or similar process) to disclose or discuss any Confidential Information (provided that in such case, Executive shall promptly inform the Company of such order, shall cooperate with the Company at the Company's expense in attempting to obtain a protective order or to otherwise restrict such disclosure, and shall only disclose Confidential Information to the minimum extent necessary to comply with any such court order). This Section 6(c) shall not apply to disclosures of Confidential Information by Executive during his employment with the Company in the ordinary course of business that he reasonably believes are necessary or appropriate and in the Company's best interests. (d) The parties hereto acknowledge and agree that the Company will suffer irreparable harm from a breach by Executive of any of the covenants or agreements contained in this Section 6. In the event of an alleged or threatened breach by Executive of any of the provisions of this Section 6, the Company or their successors or assigns may, in addition to all other rights and remedies existing in its or their favor, apply to any court of competent jurisdiction for specific performance and/or injunctive or other equitable relief in order to enforce or prevent any violations of the provisions hereof. Executive acknowledges and agrees that the restrictions contained in this Section 6 are reasonable. (e) If, at the time enforcement is sought of any of the provisions of this Section 6, a court holds that the restrictions stated herein are unreasonable under the circumstances then existing, the parties hereto agree that the maximum period, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area. Executive agrees that the covenants made in this Section 6 shall be construed as an agreement independent of any other provision of this Agreement and shall survive any order of a court of competent jurisdiction terminating any other provision of this Agreement.
Appears in 3 contracts
Samples: Management Agreement (United Industries Corp), Management Agreement (United Industries Corp), Management Agreement (United Industries Corp)
Noncompetition Nonsolicitation Confidentiality. As a material inducement to the Company to enter into this Agreement and in consideration of the payment by the Company of the compensation detailed herein to Executive:
(a) During the period (the "Noncompete Period"NONCOMPETITION. THIS SECTION 9(A) beginning on the date hereof and ending on the later of (x) the first anniversary of the Termination Date and (y) if severance payments are owed to Executive by the Company pursuant to Section 4(b)(iii)SHALL HAVE NO FORCE OR EFFECT, aboveAND SHALL NOT BE DEEMED A PART OF THE AGREEMENT DURING ANY AND ALL PERIODS IN WHICH THE EXECUTIVE PERFORMS SERVICES AS AN EMPLOYEE OF THE COMPANY PRINCIPALLY IN THE STATE OF CALIFORNIA, the last date on which such payments are due to be paid to Executive (notwithstanding any reduction in such payments pursuant to Section 4(c)), Executive shall not, without the prior written consent of the Company (which consent may be granted or withheld in the Company's sole discretion), directly or indirectly, Participate in any line of business in which the Business is actively engaged or any line of business competitive with the Business anywhere in the United States and any other country in which the Company does business as of the Closing (the "Competitive Activities"). For purposes of this Agreement, the term "Participate" includes any direct or indirect interest in, or providing any direct or indirect assistance (whether financial, advisory or otherwise) to, any enterprise (or any affiliate thereof), whether as an officer, director, employee, partner, member, sole proprietor, agent, representative, independent contractor, consultant, creditor, stockholders, unitholder, owner or otherwise; provided that the term "Participate" shall not include ownership of less than 2% of the Common Stock of a publicly-held corporation whose Common Stock is traded on a national securities exchange or in the over-the-counter marketBUT SHALL BECOME IMMEDIATELY EFFECTIVE IF AND TO THE EXTENT THE EXECUTIVE PERFORMS SERVICES AS AN EMPLOYEE OF THE COMPANY PRINCIPALLY IN A JURISDICTION OTHER THAN THE STATE OF CALIFORNIA. The parties agree that, without violating this Section 6(a), Executive may accept employment with any Person which engages in Competitive Activities; provided that such Person's business is diversified (and has separate and distinct divisions) and Executive is employed in a part of its business which does not engage in Competitive Activities; provided further that the Company, prior to Executive accepting such employment, shall receive separate written assurances satisfactory to the Company from the board of directors of such Person and Executive acknowledging that Executive is bound by this Section 6, the terms of which such Person has read, and covenanting that Executive will not render services directly or indirectly in connection with any product, process, system or service of any person or organization other than the Company, in existence or under development, which is the same as or competes with a product, process, system or service upon which Executive has worked during the last two years of Executive's employment by the Company or about which Executive acquires Confidential Information.
(b) During the Noncompete Period, Executive (a) except with respect to Executive's personal secretary, shall not, directly or indirectly contact, approach or solicit for the purpose of offering employment to or hiring (whether as an employee, consultant, agent, independent contractor or otherwise) or actually hire any person employed by the Company during the Noncompete Period and (b) shall not induce or attempt to induce any customer or other business relation of the Company to cease doing business with the Company or to engage in any business relationship which might materially harm the Company.
(c) Executive acknowledges that certain in the course of the information, observations and data relating to the Company which he possesses or has obtained as an employee, officer, director or stockholder of the Company is the confidential and proprietary property of the Company ("Confidential Information"). Executive agrees that he shall not, directly or indirectly, use for his own purposes or use for or disclose to any third party any of such Confidential Information without the prior written consent of the Company, unless and to the extent that the aforementioned matters (i) become generally known to and available for use by the public other than as a result of a Executive's acts or omissions to act, or (ii) Executive is required by order of a court of competent jurisdiction (by subpoena or similar process) to disclose or discuss any Confidential Information (provided that in such case, Executive shall promptly inform the Company of such order, shall cooperate with the Company at the Company's expense in attempting to obtain a protective order or to otherwise restrict such disclosure, and shall only disclose Confidential Information to the minimum extent necessary to comply with any such court order). This Section 6(c) shall not apply to disclosures of Confidential Information by Executive during his employment with the Company in and its Affiliates and their predecessors, he has and will continue to become familiar with the ordinary course trade secrets of, and other confidential information concerning, the Company and its Affiliates, that the Executive's services will be of business special, unique and extraordinary value to the Company and its Affiliates and that he reasonably believes are necessary or appropriate and in the Company's best interests.
(d) The parties hereto acknowledge ability to accomplish its purposes and agree that to successfully pursue its business plan and compete in the marketplace depends substantially on the skills and expertise of the Executive. Therefore, and in further consideration of the compensation being paid to the Executive hereunder, the Executive agrees that, during the Employment Period and for a period of twelve months following the Executive's termination of employment with the Company will suffer irreparable harm from for any reason other than a breach by Executive termination of any of employment in which Section 8(d) hereof applies (in which case the covenants or agreements contained restrictions set forth in this Section 6. In the event of an alleged or threatened breach by Executive of any of the provisions 9 of this Section 6Agreement shall not apply) (the "Restricted Period"), he shall not directly or indirectly own, manage, control, participate in, consult with, render services for, or in any manner engage in any business competing with the businesses of the Company or their successors or assigns mayits Affiliates, in addition any country where the Company or its Affiliates conducts business; provided, however, that passive investments amounting to all other rights and remedies existing in its or their favor, apply to any court of competent jurisdiction for specific performance and/or injunctive or other equitable relief in order to enforce or prevent any violations no more than three percent of the provisions hereof. Executive acknowledges and agrees that the restrictions contained in this Section 6 are reasonable.
(e) If, at the time enforcement is sought of any of the provisions of this Section 6, a court holds that the restrictions stated herein are unreasonable under the circumstances then existing, the parties hereto agree that the maximum period, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area. Executive agrees that the covenants made in this Section 6 shall be construed as an agreement independent of any other provision of this Agreement and shall survive any order voting equity of a court of competent jurisdiction terminating any other provision of this Agreementbusiness shall not be prohibited hereby.
Appears in 2 contracts
Samples: Employment Agreement (Globespanvirata Inc), Employment Agreement (Globespanvirata Inc)
Noncompetition Nonsolicitation Confidentiality. As a material inducement to the Company to enter into this Agreement and in consideration of the payment by the Company of the compensation detailed herein to Executive:
(a) During Except to the extent permitted by the Transitional Services Agreement, each of the Sellers, Xxxx Members and Xx Xxxx agrees that, during the period (the "Noncompete Period") beginning on the date hereof Closing Date and ending on the later of (x) the first fifth anniversary of the Termination Closing Date and (y) if severance payments are owed to Executive by the Company pursuant to Section 4(b)(iii“Restricted Period”), aboveneither it nor any of its Affiliates, the last date on which such payments are due to be paid to Executive (notwithstanding any reduction in such payments pursuant to Section 4(c)), Executive shall not, without the prior written consent of the Company (which consent may be granted Fibrwrap NC or withheld in the Company's sole discretion)Fibrwrap SE shall, directly or indirectly, Participate (i) in any line of business manner engage in which the Business is actively engaged or any line of business competitive with the Business anywhere in the United States and States, Canada and, as of the Acquisition Date of any Foreign Entity, any other country in which the Company where such Acquired Foreign Entity does business on the Acquisition Date (the “Territory”) or (ii) participate as a stockholder, member, partner, agent or representative or other independent contractor of, or have any direct or indirect financial interest in, any enterprise that is engaged, or, to the knowledge of such Seller or Xxxx Member, plans to engage, in the Business anywhere in the Territory. For the avoidance of doubt, as of the Closing Date, the Territory shall only include the United States and Canada, and on the Acquisition Date of any Acquired Foreign Entity, the Territory shall be expanded to include the country where such Acquired Foreign Entity does business. Nothing contained in this Section 7.2(a) shall prohibit any Party from owning any securities of any Person (other than a natural Person) whose securities are traded on a recognized securities exchange, so long as such ownership interest does not exceed five percent (5%) of the "Competitive Activities")Equity Securities of such Person. For purposes of this AgreementSection 7.2, the term "Participate" includes any direct or indirect interest in, or providing any direct or indirect assistance (whether financial, advisory or otherwise) to, any enterprise (or any affiliate thereof), whether as an officer, director, employee, partner, member, sole proprietor, agent, representative, independent contractor, consultant, creditor, stockholders, unitholder, owner or otherwise; provided that the term "Participate" “Affiliates” shall not include ownership any partners of less than 2% of the Common Stock of a publicly-held corporation whose Common Stock is traded on a national securities exchange any Bison Party or in the over-the-counter market. The parties agree that, without violating this Section 6(a), Executive may accept employment with any Person which engages in Competitive Activities; provided that such Person's business is diversified (and has separate and distinct divisions) and Executive is employed in a part of its business which does not engage in Competitive Activities; provided further that the Company, prior to Executive accepting such employment, shall receive separate written assurances satisfactory to the Company from the board of directors Affiliates of such Person and Executive acknowledging that Executive is bound by this Section 6, the terms of which such Person has read, and covenanting that Executive will not render services directly or indirectly in connection with any product, process, system or service of any person or organization other than the Company, in existence or under development, which is the same as or competes with a product, process, system or service upon which Executive has worked during the last two years of Executive's employment by the Company or about which Executive acquires Confidential Informationpartners.
(b) During Sellers and Xxxx Members agree that, during the Noncompete Restricted Period, Executive neither they nor any of their Affiliates, Fibrwrap SE or Fibrwrap NC shall: (ai) except cause, solicit, induce or encourage any employees to leave employment with respect an ITI Entity, provided, however, this prohibition shall not apply to Executive's personal secretary, shall not, any employee who responds to a public solicitation not targeted directly or indirectly contact, approach or solicit for the purpose of offering employment to or hiring (whether as an at such employee, consultantan ITI Entity or their Affiliates or the Business; (ii) cause, agent, independent contractor or otherwise) or actually hire any person employed by the Company during the Noncompete Period and (b) shall not induce or attempt to induce encourage any material customer or other business relation supplier to terminate or modify any relationship with an ITI Entity; or (iii) make or otherwise publish statements that disparage the ITI Entities or any of the Company to cease doing business with the Company or to engage in any business relationship which might materially harm the Companytheir Affiliates.
(c) Executive acknowledges that certain of From and after the informationdate hereof, observations Sellers and data relating to the Company which he possesses or has obtained as an employeeXxxx Members and their Affiliates, officer, director or stockholder of the Company is the confidential and proprietary property of the Company ("Confidential Information"). Executive agrees that he their respective officers and directors shall not, not directly or indirectly, use for his own purposes and Xxxx Group shall cause Fibrwrap NC and Fibrwrap SE not to directly or use for indirectly, (i) disclose, reveal, divulge or disclose communicate to any third party Person other than authorized officers, directors, attorneys, accountants and advisors of the Sellers or Xxxx Members, or (ii) use or otherwise exploit for its own benefit or for the benefit of anyone other than the ITI Entities, any of such Confidential Information without (as defined below) except as required to allow the prior written consent Foreign Entities to operate their Business after the Closing in the Ordinary Course of the CompanyBusiness. Sellers, unless Xxxx Members, their Affiliates and their respective officers, directors and Affiliates shall not have any obligation to keep confidential any Confidential Information if and to the extent disclosure thereof is specifically required by Law; provided, however, that in the event disclosure is required by applicable Law, Sellers and Xxxx Members shall, to the extent reasonably possible, provide the ITI Entities with prompt notice of such requirement prior to making any disclosure so that the aforementioned matters ITI Entities may seek an appropriate protective order. For purposes of this Section 7.2(c), “Confidential Information” means any information with respect to the Business, the Purchased Assets, the North American Companies and the Foreign Entities, including methods of operation, customers, customer lists, products, prices, fees, costs, Technology, inventions, trade secrets, Know-How, Software, marketing methods, plans, personnel, suppliers, competitors, markets or other specialized information or proprietary matters. Confidential Information does not include, and there shall be no obligation hereunder with respect to, information that (i) become is generally known available to and the public on the date of this Agreement; (ii) becomes generally available for use by to the public other than as a result of a Executive's acts disclosure not otherwise permissible hereunder after the date of this Agreement; (iii) information or omissions techniques that are independently developed by any Seller, Xxxx Member or any of their Affiliates or Representatives without the use or application of Confidential Information; (iv) information that is or becomes available to act, any Seller or (ii) Executive Xxxx Member or any of their Affiliates from a third party who is required by order of a court of competent jurisdiction (by subpoena under no confidential or similar process) to disclose or discuss any Confidential Information (provided that in such case, Executive shall promptly inform the Company of such order, shall cooperate with the Company at the Company's expense in attempting to obtain a protective order or to otherwise restrict such disclosure, and shall only disclose Confidential Information fiduciary obligation to the minimum extent necessary ITI Entities or any Affiliate of the ITI Entities with respect to comply such information; and (vi) information in connection with submitting proof or evidence in any such court order). This Section 6(c) shall not apply Proceeding to disclosures of Confidential Information by Executive during his employment with the Company in the ordinary course of business that he reasonably believes are necessary enforce any Seller’s or appropriate Xxxx Member’s rights and in the Company's best interests.
(d) The parties hereto acknowledge and agree that the Company will suffer irreparable harm from a breach by Executive of remedies under this Agreement or any of the covenants or agreements contained in this Section 6. In the event of an alleged or threatened breach by Executive of any of the provisions of this Section 6, the Company or their successors or assigns may, in addition to all other rights and remedies existing in its or their favor, apply to any court of competent jurisdiction for specific performance and/or injunctive or other equitable relief in order to enforce or prevent any violations of the provisions hereof. Executive acknowledges and agrees that the restrictions contained in this Section 6 are reasonableTransaction Documents.
(e) If, at the time enforcement is sought of any of the provisions of this Section 6, a court holds that the restrictions stated herein are unreasonable under the circumstances then existing, the parties hereto agree that the maximum period, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area. Executive agrees that the covenants made in this Section 6 shall be construed as an agreement independent of any other provision of this Agreement and shall survive any order of a court of competent jurisdiction terminating any other provision of this Agreement.
Appears in 1 contract
Samples: Acquisition Agreement (Insituform Technologies Inc)
Noncompetition Nonsolicitation Confidentiality. As a material inducement to the Company to enter into this Agreement and in consideration of the payment by the Company of the compensation detailed herein to Executive:
(a) During the period (the "Noncompete PeriodNONCOMPETE PERIOD") beginning on the date hereof and ending on the later of (x) the first anniversary of 18 months after the Termination Date and (y) if severance payments are owed to Executive by the Company pursuant to Section 4(b)(iii), above, the last date on which such payments are due to be paid to Executive (notwithstanding any reduction in such payments pursuant to Section 4(c))Date, Executive shall not, without the prior written consent of the Company (which consent may be granted or withheld in the Company's sole discretion), directly or indirectly, Participate in any line of business in which the Business Company is actively engaged or any line of business competitive with the Business Company anywhere in the United States and any other country in which the Company does business as of the Closing Termination Date (the "Competitive ActivitiesCOMPETITIVE ACTIVITIES"). For purposes of this Agreement, the term "ParticipatePARTICIPATE" includes any direct or indirect interest in, or providing any direct or indirect assistance (whether financial, advisory or otherwise) to, any enterprise (or any affiliate thereof), whether as an officer, director, employee, partner, member, sole proprietor, agent, representative, independent contractor, consultant, creditor, stockholders, unitholder, owner or otherwise; provided that PROVIDED THAT the term "Participate" shall not include beneficial ownership of less than 2% of the Common Stock a class of a publicly-held corporation whose Common Stock is securities traded on a national securities exchange or in the over-the-counter market. The parties agree that, without violating this Section 6(a), Executive may accept employment with any Person which engages in Competitive Activities; provided that such Person's business is diversified (and has separate and distinct divisions) and Executive is employed in a part of its business which does not engage in Competitive Activities; provided further that the Company, prior to Executive accepting such employment, shall receive separate written assurances satisfactory to the Company from the board of directors of such Person and Executive acknowledging that Executive is bound by this Section 6, the terms of which such Person has read, and covenanting that Executive will not render services directly or indirectly in connection with any product, process, system or service of any person or organization other than the Company, in existence or under development, which is the same as or competes with a product, process, system or service upon which Executive has worked during the last two years of Executive's employment by the Company or about which Executive acquires Confidential InformationNASDAQ Stock Market.
(b) During the Noncompete Period, Executive (ai) except with respect to Executive's personal secretarysecretary and Xxxxxx X. Xxxxxxxx, shall not, and shall not attempt to, directly or indirectly contact, approach or solicit for the purpose of offering employment to or hiring (or retaining, or arrange to have any other Person hire or retain, or actually hire or retain, whether as an employee, consultant, agent, independent contractor or otherwise) , any Person employed or actually hire retained by NSP Holdings L.L.C., Company, or any person employed by the Company Subsidiary as an employee, consultant or independent contractor during the Noncompete Period and (bii) shall not, and shall not induce attempt to, call-on, solicit, service, advise, encourage or attempt to induce any customer customer, supplier, or other business relation of the Company NSP Holdings, L.L.C., Company, or any Subsidiary to cease doing business business, or reduce its business, with the Company NSP Holdings L.L.C., Company, or any Subsidiary or to engage in any business relationship which might materially harm the NSP Holdings L.L.C., Company, or any Subsidiary.
(c) Executive acknowledges that certain of the information, observations and data relating to the Company and its Affiliates, or their business, products or services, which he possesses or has obtained knowledge of or will possess or obtain knowledge of as an employee, officer, director or stockholder equityholder of the Company is and will be the confidential and proprietary property of the Company and its Affiliates ("Confidential InformationCONFIDENTIAL INFORMATION"). Executive agrees that he shall not, directly or indirectly, use for his own purposes or use for or disclose to any third party any of such Confidential Information without the prior written consent of the Company, unless and to the extent that the aforementioned matters (i) become generally known to and available for use by the public other than as a result of a Executive's acts or omissions failures to act, or (ii) Executive is required by order of a court of competent jurisdiction (by subpoena or similar process) to disclose or discuss any Confidential Information (provided that in such case, Executive shall promptly inform the Company of such order, shall cooperate with the Company at the Company's expense in attempting to obtain a protective order or to otherwise restrict such disclosure, and shall only disclose Confidential Information to the minimum extent necessary to comply with any such court order). This Section 6(c) shall not apply to disclosures of Confidential Information by Executive during his employment with the Company in the ordinary course of business that he reasonably believes are necessary or appropriate and in the Company's best interests.
(d) The parties hereto acknowledge and agree that the Company will suffer irreparable harm from a breach by Executive of any of the covenants or agreements contained in this Section SECTION 6. In the event of an alleged or threatened breach by Executive of any of the provisions of this Section SECTION 6, the Company or their successors or assigns other appropriate Person may, in addition to all other rights and remedies existing in its or their favor, apply to any court of competent jurisdiction for specific performance and/or injunctive or other equitable relief in order to enforce or prevent any violations of the provisions hereof. Executive acknowledges and agrees that the restrictions contained in this Section SECTION 6 are reasonable.
(e) If, at the time enforcement is sought of any of the provisions of this Section 6SECTION 6 is sought, a court holds that the restrictions stated herein are unreasonable under the circumstances then existing, the parties hereto agree that the maximum period, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or geographical area. Executive agrees that the covenants made in this Section SECTION 6 shall be construed as an agreement independent of any other provision of this Agreement and shall survive any order of a court of competent jurisdiction terminating any other provision of this Agreement.
(f) Executive hereby agrees and acknowledges (i) that the Company and its Affiliates have protectable interests in the information, data, and plans, both technical and business in nature, which are treated as confidential, as well as the goodwill and specialized knowledge acquired by Executive during the course of Executive's employment with the Company; (ii) that the provisions of this SECTION 6 are in consideration of (A) employment with the Company, (B) access to and use of Confidential Information, including but not limited to information, data, and plans, both technical and business in nature, such as customer lists and records, sales records and marketing plans, research and technical reports and records, formulas, processes, programs, inventions, patent applications, designs and drawings, instructions and training manuals, business and financial information, salary information, contracts and other legal documents, and correspondence to which the Company has been a party, (C) access to and Executive's development on behalf of the Company of near-permanent relationships with the Company's customers, and (D) additional good and valuable consideration the receipt and sufficiency of which is hereby acknowledged; (iii) that the restrictions contained in this SECTION 6 do not preclude Executive from earning a livelihood, nor do they unreasonably impose limitations on Executive's ability to earn a living, and that the potential harm to the Company or its Affiliates of the non-enforcement of this SECTION 6 outweighs any harm to Executive of their enforcement by injunction or otherwise; and (iv) that Executive has carefully reviewed this Agreement and that he has consulted with independent legal counsel regarding his rights and obligations under this Agreement (or, after carefully reviewing this Agreement, was given the opportunity to, but has freely decided not to, consult with independent legal counsel), has given careful consideration to the restraints imposed upon Executive by this Agreement, fully understands the terms and conditions contained herein and is in full accord as to their necessity for the reasonable and proper protection of the Company's near-permanent customer relationships and employee relationships and Confidential Information and those of its Affiliates, and Executive intends for such terms to be binding on and enforceable against him, and that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area.
(g) Executive agrees that the provisions of this SECTION 6 shall inure to the benefit of and be enforceable by any Person with whom or into which the Company shall merge or consolidate, regardless whether the Company shall be the survivor of such transaction, or to any Person acquiring all or substantially all of the Company's assets or business.
Appears in 1 contract
Noncompetition Nonsolicitation Confidentiality. As a material inducement to the Company to enter into this Agreement and in consideration of the payment by the Company of the compensation detailed herein to Executive:(a) Noncompetition. THIS SECTION 9
(a) During SHALL HAVE NO FORCE OR EFFECT, AND SHALL NOT BE DEEMED A PART OF THIS AGREEMENT, DURING ANY AND ALL PERIODS IN WHICH THE EXECUTIVE PERFORMS SERVICES AS AN EMPLOYEE OF THE COMPANY PRINCIPALLY IN THE STATE OF CALIFORNIA, BUT SHALL BECOME IMMEDIATELY EFFECTIVE IF AND TO THE EXTENT THE EXECUTIVE PERFORMS SERVICES AS AN EMPLOYEE OF THE COMPANY PRINCIPALLY IN A JURISDICTION OTHER THAN THE STATE OF CALIFORNIA. The Executive acknowledges that in the period (the "Noncompete Period") beginning on the date hereof and ending on the later of (x) the first anniversary course of the Termination Date and (y) if severance payments are owed to Executive by Executive's employment with the Company pursuant to Section 4(b)(iii), aboveand its Affiliates and their predecessors, the last date on which such payments are due Executive has and will continue to be paid to Executive (notwithstanding any reduction in such payments pursuant to Section 4(c))become familiar with the trade secrets of, Executive shall notand other confidential information concerning, without the prior written consent of the Company (which consent may and its Affiliates and their predecessors, that the Executive's services will be granted or withheld in of special, unique and extraordinary value to the Company and its Affiliates and that the Company's sole discretion)ability to accomplish its purposes and to successfully pursue its business plan and compete in the marketplace depends substantially on the skills and expertise of the Executive. Therefore, directly or indirectlyand in further consideration of the compensation being paid to the Executive hereunder, Participate in the Executive agrees that, during the Employment Period and for a period of twelve months following the Executive's termination of employment with the Company for any line reason other than a termination of business employment in which the Business is actively engaged or any line of business competitive with the Business anywhere in the United States and any other country Section 8(d) applies (in which case the Company does business as of the Closing (the "Competitive Activities"). For purposes of this Agreement, the term "Participate" includes any direct or indirect interest in, or providing any direct or indirect assistance (whether financial, advisory or otherwiserestrictions set forth in Sections 9(a) to, any enterprise (or any affiliate thereof), whether as an officer, director, employee, partner, member, sole proprietor, agent, representative, independent contractor, consultant, creditor, stockholders, unitholder, owner or otherwise; provided that the term "Participate" shall not include ownership of less than 2% of the Common Stock of a publicly-held corporation whose Common Stock is traded on a national securities exchange or in the over-the-counter market. The parties agree that, without violating this Section 6(a), Executive may accept employment with any Person which engages in Competitive Activities; provided that such Person's business is diversified (and has separate and distinct divisions) and Executive is employed in a part of its business which does not engage in Competitive Activities; provided further that the Company, prior to Executive accepting such employment, shall receive separate written assurances satisfactory to the Company from the board of directors of such Person and Executive acknowledging that Executive is bound by this Section 6, the terms of which such Person has read, and covenanting that Executive will not render services directly or indirectly in connection with any product, process, system or service of any person or organization other than the Company, in existence or under development, which is the same as or competes with a product, process, system or service upon which Executive has worked during the last two years of Executive's employment by the Company or about which Executive acquires Confidential Information.
(b) During the Noncompete Period, Executive (a) except with respect to Executive's personal secretary, shall not, directly or indirectly contact, approach or solicit for the purpose of offering employment to or hiring (whether as an employee, consultant, agent, independent contractor or otherwise) or actually hire any person employed by the Company during the Noncompete Period and (b) shall not induce or attempt to induce any customer or other business relation apply following the Executive's termination of the Company to cease doing business employment with the Company Company) (the "Restricted Period"), the Executive shall not directly or to indirectly own, manage, control, participate in, consult with, render services for, or in any manner engage in any business relationship which might materially harm competing with the Company.
(c) Executive acknowledges that certain of the information, observations and data relating to the Company which he possesses or has obtained as an employee, officer, director or stockholder businesses of the Company is the confidential and proprietary property of the Company ("Confidential Information"). Executive agrees that he shall notor its Affiliates, directly or indirectly, use for his own purposes or use for or disclose to in any third party any of such Confidential Information without the prior written consent of the Company, unless and to the extent that the aforementioned matters (i) become generally known to and available for use by the public other than as a result of a Executive's acts or omissions to act, or (ii) Executive is required by order of a court of competent jurisdiction (by subpoena or similar process) to disclose or discuss any Confidential Information (provided that in such case, Executive shall promptly inform the Company of such order, shall cooperate with the Company at the Company's expense in attempting to obtain a protective order or to otherwise restrict such disclosure, and shall only disclose Confidential Information to the minimum extent necessary to comply with any such court order). This Section 6(c) shall not apply to disclosures of Confidential Information by Executive during his employment with the Company in the ordinary course of business that he reasonably believes are necessary or appropriate and in the Company's best interests.
(d) The parties hereto acknowledge and agree that the Company will suffer irreparable harm from a breach by Executive of any of the covenants or agreements contained in this Section 6. In the event of an alleged or threatened breach by Executive of any of the provisions of this Section 6, country where the Company or their successors or assigns mayits Affiliates conducts business; provided, in addition however, that passive investments amounting to all other rights and remedies existing in its or their favor, apply to any court of competent jurisdiction for specific performance and/or injunctive or other equitable relief in order to enforce or prevent any violations no more than three percent of the provisions hereof. Executive acknowledges and agrees that the restrictions contained in this Section 6 are reasonable.
(e) If, at the time enforcement is sought of any of the provisions of this Section 6, a court holds that the restrictions stated herein are unreasonable under the circumstances then existing, the parties hereto agree that the maximum period, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area. Executive agrees that the covenants made in this Section 6 shall be construed as an agreement independent of any other provision of this Agreement and shall survive any order voting equity of a court of competent jurisdiction terminating any other provision of this Agreementbusiness shall not be prohibited hereby.
Appears in 1 contract
Noncompetition Nonsolicitation Confidentiality. As a material inducement to the Company to enter into this Agreement and in consideration of the payment by the Company of the compensation detailed herein to Executive:
(a) During the period (the "“Noncompete Period"”) beginning on the date hereof and ending on the later of (x) the first anniversary of 18 months after the Termination Date and (y) if severance payments are owed to Executive by the Company pursuant to Section 4(b)(iii), above, the last date on which such payments are due to be paid to Executive (notwithstanding any reduction in such payments pursuant to Section 4(c))Date, Executive shall not, without the prior written consent of the Company (which consent may be granted or withheld in the Company's ’s sole discretion), directly or indirectly, Participate in any line of business in which the Business Company is actively engaged or any line of business competitive with the Business Company anywhere in the United States and any other country in which the Company does business as of the Closing Termination Date (the "“Competitive Activities"”). For purposes of this Agreement, the term "“Participate" ” includes any direct or indirect interest in, or providing any direct or indirect assistance (whether financial, advisory or otherwise) to, any enterprise (or any affiliate thereof), whether as an officer, director, employee, partner, member, sole proprietor, agent, representative, independent contractor, consultant, creditor, stockholders, unitholder, owner or otherwise; provided that the term "“Participate" ” shall not include beneficial ownership of less than 2% of the Common Stock a class of a publicly-held corporation whose Common Stock is securities traded on a national securities exchange or in the over-the-counter market. The parties agree that, without violating this Section 6(a), Executive may accept employment with any Person which engages in Competitive Activities; provided that such Person's business is diversified (and has separate and distinct divisions) and Executive is employed in a part of its business which does not engage in Competitive Activities; provided further that the Company, prior to Executive accepting such employment, shall receive separate written assurances satisfactory to the Company from the board of directors of such Person and Executive acknowledging that Executive is bound by this Section 6, the terms of which such Person has read, and covenanting that Executive will not render services directly or indirectly in connection with any product, process, system or service of any person or organization other than the Company, in existence or under development, which is the same as or competes with a product, process, system or service upon which Executive has worked during the last two years of Executive's employment by the Company or about which Executive acquires Confidential InformationNASDAQ Stock Market.
(b) During the Noncompete Period, Executive (ai) except with respect to Executive's ’s personal secretarysecretary and Xxxxxx X. Xxxxxxxx, shall not, and shall not attempt to, directly or indirectly contact, approach or solicit for the purpose of offering employment to or hiring (or retaining, or arrange to have any other Person hire or retain, or actually hire or retain, whether as an employee, consultant, agent, independent contractor or otherwise) , any Person employed or actually hire retained by Safety Products Holdings, Inc., Company, or any person employed by the Company Subsidiary as an employee, consultant or independent contractor during the Noncompete Period and (bii) shall not, and shall not induce attempt to, call-on, solicit, service, advise, encourage or attempt to induce any customer customer, supplier, or other business relation of the Company Safety Products Holdings, Inc., Company, or any Subsidiary to cease doing business business, or reduce its business, with the Company NSP Holdings L.L.C., Company, or any Subsidiary or to engage in any business relationship which might materially harm the Safety Products Holdings, Inc., Company, or any Subsidiary.
(c) Executive acknowledges that certain of the information, observations and data relating to the Company and its Affiliates, or their business, products or services, which he possesses or has obtained knowledge of or will possess or obtain knowledge of as an employee, officer, director or stockholder equityholder of the Company is and will be the confidential and proprietary property of the Company and its Affiliates ("“Confidential Information"”). Executive agrees that he shall not, directly or indirectly, use for his own purposes or use for or disclose to any third party any of such Confidential Information without the prior written consent of the Company, unless and to the extent that the aforementioned matters (i) become generally known to and available for use by the public other than as a result of a Executive's ’s acts or omissions failures to act, or (ii) Executive is required by order of a court of competent jurisdiction (by subpoena or similar process) to disclose or discuss any Confidential Information (provided that in such case, Executive shall promptly inform the Company of such order, shall cooperate with the Company at the Company's ’s expense in attempting to obtain a protective order or to otherwise restrict such disclosure, and shall only disclose Confidential Information to the minimum extent necessary to comply with any such court order). This Section 6(c) shall not apply to disclosures of Confidential Information by Executive during his employment with the Company in the ordinary course of business that he reasonably believes are necessary or appropriate and in the Company's best interests.
(d) The parties hereto acknowledge and agree that the Company will suffer irreparable harm from a breach by Executive of any of the covenants or agreements contained in this Section 6. In the event of an alleged or threatened breach by Executive of any of the provisions of this Section 6, the Company or their successors or assigns other appropriate Person may, in addition to all other rights and remedies existing in its or their favor, apply to any court of competent jurisdiction for specific performance and/or injunctive or other equitable relief in order to enforce or prevent any violations of the provisions hereof. Executive acknowledges and agrees that the restrictions contained in this Section 6 are reasonable.
(e) If, at the time enforcement is sought of any of the provisions of this Section 66 is sought, a court holds that the restrictions stated herein are unreasonable under the circumstances then existing, the parties hereto agree that the maximum period, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or geographical area. Executive agrees that the covenants made in this Section 6 shall be construed as an agreement independent of any other provision of this Agreement and shall survive any order of a court of competent jurisdiction terminating any other provision of this Agreement.
(f) Executive hereby agrees and acknowledges (i) that the Company and its Affiliates have protectable interests in the information, data, and plans, both technical and business in nature, which are treated as confidential, as well as the goodwill and specialized knowledge acquired by Executive during the course of Executive’s, employment with the Company; (ii) that the provisions of this Section 6 are in consideration of (A) employment with the Company, including Equity grants under the Equity Program, (B) access to and use of Confidential Information, including but not limited to information, data, and plans, both technical and business in nature, such as customer lists and records, sales records and marketing plans, research and technical reports and records, formulas, processes, programs, inventions, patent applications, designs and drawings, instructions and training manuals, business and financial information, salary information, contracts and other legal documents, and correspondence to which the Company has been a party, (C) access to and Executive’s development on behalf of the Company of near-permanent relationships with the Company’s customers, and (D) additional good and valuable consideration the receipt and sufficiency of which is hereby acknowledged; (iii) that the restrictions contained in this Section 6 do not preclude Executive from earning a livelihood, nor do they unreasonably impose limitations on Executive’s ability to earn a living, and that the potential harm to the Company or its Affiliates of the non-enforcement of this Section 6 outweighs any harm to Executive of their enforcement by injunction or otherwise; and (iv) that Executive has carefully reviewed this Agreement and that he has consulted with independent legal counsel regarding his rights and obligations under this Agreement (or, after carefully reviewing this Agreement, was given the opportunity to, but has freely decided not to, consult with independent legal counsel), has given careful consideration to the restraints imposed upon Executive by this Agreement, fully understands the terms and conditions contained herein and is in full accord as to their necessity for the reasonable and proper protection of the Company’s near-permanent customer relationships and employee relationships and Confidential Information and those of its Affiliates, and Executive intends for such terms to be binding on and enforceable against him, and that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area.
(g) Executive agrees that the provisions of this Section 6 shall inure to the benefit of and be enforceable by any Person with whom or into which the Company shall merge or consolidate, regardless whether the Company shall be the survivor of such transaction, or to any Person acquiring all or substantially all of the Company’s assets or business.
Appears in 1 contract
Samples: Employment Agreement (Norcross Safety Products LLC)
Noncompetition Nonsolicitation Confidentiality. As a material inducement to the Company to enter into this Agreement and in consideration of the payment by the Company of the compensation detailed herein to Executive:
(a) During the period (the "“Noncompete Period"”) beginning on the date hereof and ending on the later of (x) the first anniversary of 18 months after the Termination Date and (y) if severance payments are owed to Executive by the Company pursuant to Section 4(b)(iii), above, the last date on which such payments are due to be paid to Executive (notwithstanding any reduction in such payments pursuant to Section 4(c))Date, Executive shall not, without the prior written consent of the Company (which consent may be granted or withheld in the Company's ’s sole discretion), directly or indirectly, Participate in any line of business in which the Business Company is actively engaged or any line of business competitive with the Business Company anywhere in the United States and any other country in which the Company does business as of the Closing Termination Date (the "“Competitive Activities"”). For purposes of this Agreement, the term "“Participate" ” includes any direct or indirect interest in, or providing any direct or indirect assistance (whether financial, advisory or otherwise) to, any enterprise (or any affiliate thereof), whether as an officer, director, employee, partner, member, sole proprietor, agent, representative, independent contractor, consultant, creditor, stockholders, unitholder, owner or otherwise; provided that the term "“Participate" ” shall not include beneficial ownership of less than 2% of the Common Stock a class of a publicly-held corporation whose Common Stock is securities traded on a national securities exchange or in the over-the-counter market. The parties agree that, without violating this Section 6(a), Executive may accept employment with any Person which engages in Competitive Activities; provided that such Person's business is diversified (and has separate and distinct divisions) and Executive is employed in a part of its business which does not engage in Competitive Activities; provided further that the Company, prior to Executive accepting such employment, shall receive separate written assurances satisfactory to the Company from the board of directors of such Person and Executive acknowledging that Executive is bound by this Section 6, the terms of which such Person has read, and covenanting that Executive will not render services directly or indirectly in connection with any product, process, system or service of any person or organization other than the Company, in existence or under development, which is the same as or competes with a product, process, system or service upon which Executive has worked during the last two years of Executive's employment by the Company or about which Executive acquires Confidential InformationNASDAQ Stock Market.
(b) During the Noncompete Period, Executive (ai) except with respect to Executive's ’s personal secretarysecretary and Xxxxx X. Xxxxx, Xx., shall not, and shall not attempt to, directly or indirectly contact, approach or solicit for the purpose of offering employment to or hiring (or retaining, or arrange to have any other Person hire or retain, or actually hire or retain, whether as an employee, consultant, agent, independent contractor or otherwise) , any Person employed or actually hire retained by Safety Products Holdings, Inc., Company, or any person employed by the Company Subsidiary as an employee, consultant or independent contractor during the Noncompete Period and (bii) shall not, and shall not induce attempt to, call-on, solicit, service, advise, encourage or attempt to induce any customer customer, supplier, or other business relation of the Company Safety Products Holdings, Inc., Company, or any Subsidiary to cease doing business business, or reduce its business, with the Company Safety Products Holdings, Inc., Company, or any Subsidiary or to engage in any business relationship which might materially harm the Safety Products Holdings, Inc., Company, or any Subsidiary.
(c) Executive acknowledges that certain of the information, observations and data relating to the Company and its Affiliates, or their business, products or services, which he possesses or has obtained knowledge of or will possess or obtain knowledge of as an employee, officer, director or stockholder equityholder of the Company is and will be the confidential and proprietary property of the Company and its Affiliates ("“Confidential Information"”). Executive agrees that he shall not, directly or indirectly, use for his own purposes or use for or disclose to any third party any of such Confidential Information without the prior written consent of the Company, unless and to the extent that the aforementioned matters (i) become generally known to and available for use by the public other than as a result of a Executive's ’s acts or omissions failures to act, or (ii) Executive is required by order of a court of competent jurisdiction (by subpoena or similar process) to disclose or discuss any Confidential Information (provided that in such case, Executive shall promptly inform the Company of such order, shall cooperate with the Company at the Company's ’s expense in attempting to obtain a protective order or to otherwise restrict such disclosure, and shall only disclose Confidential Information to the minimum extent necessary to comply with any such court order). This Section 6(c) shall not apply to disclosures of Confidential Information by Executive during his employment with the Company in the ordinary course of business that he reasonably believes are necessary or appropriate and in the Company's best interests.
(d) The parties hereto acknowledge and agree that the Company will suffer irreparable harm from a breach by Executive of any of the covenants or agreements contained in this Section 6. In the event of an alleged or threatened breach by Executive of any of the provisions of this Section 6, the Company or their successors or assigns other appropriate Person may, in addition to all other rights and remedies existing in its or their favor, apply to any court of competent jurisdiction for specific performance and/or injunctive or other equitable relief in order to enforce or prevent any violations of the provisions hereof. Executive acknowledges and agrees that the restrictions contained in this Section 6 are reasonable.
(e) If, at the time enforcement is sought of any of the provisions of this Section 66 is sought, a court holds that the restrictions stated herein are unreasonable under the circumstances then existing, the parties hereto agree that the maximum period, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or geographical area. Executive agrees that the covenants made in this Section 6 shall be construed as an agreement independent of any other provision of this Agreement and shall survive any order of a court of competent jurisdiction terminating any other provision of this Agreement.
(f) Executive hereby agrees and acknowledges (i) that the Company and its Affiliates have protectable interests in the information, data, and plans, both technical and business in nature, which are treated as confidential, as well as the goodwill and specialized knowledge acquired by Executive during the course of Executive’s employment with the Company; (ii) that the provisions of this Section 6 are in consideration of (A) employment with the Company, including grants of Equity under the Equity Program, (B) access to and use of Confidential Information, including but not limited to information, data, and plans, both technical and business in nature, such as customer lists and records, sales records and marketing plans, research and technical reports and records, formulas, processes, programs, inventions, patent applications, designs and drawings, instructions and training manuals, business and financial information, salary information, contracts and other legal documents, and correspondence to which the Company has been a party, (C) access to and Executive’s development on behalf of the Company of near-permanent relationships with the Company’s customers, and (D) additional good and valuable consideration the receipt and sufficiency of which is hereby acknowledged; (iii) that the restrictions contained in this Section 6 do not preclude Executive from earning a livelihood, nor do they unreasonably impose limitations on Executive’s ability to earn a living, and that the potential harm to the Company or its Affiliates of the non-enforcement of this Section 6 outweighs any harm to Executive of their enforcement by injunction or otherwise; and (iv) that Executive has carefully reviewed this Agreement and that he has consulted with independent legal counsel regarding his rights and obligations under this Agreement (or, after carefully reviewing this Agreement, was given the opportunity to, but has freely decided not to, consult with independent legal counsel), has given careful consideration to the restraints imposed upon Executive by this Agreement, fully understands the terms and conditions contained herein and is in full accord as to their necessity for the reasonable and proper protection of the Company’s near-permanent customer relationships and employee relationships and Confidential Information and those of its Affiliates, and Executive intends for such terms to be binding on and enforceable against him, and that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area.
(g) Executive agrees that the provisions of this Section 6 shall inure to the benefit of and be enforceable by any Person with whom or into which the Company shall merge or consolidate, regardless whether the Company shall be the survivor of such transaction, or to any Person acquiring all or substantially all of the Company’s assets or business.
Appears in 1 contract
Samples: Employment Agreement (Norcross Safety Products LLC)
Noncompetition Nonsolicitation Confidentiality. As a material inducement to the Company to enter into this Agreement and in consideration of the payment by the Company of the compensation detailed herein to Executive:
(a) During the period (the "Noncompete Period") beginning on the date hereof and ending on the later of (x) the first anniversary of the Termination Date and (y) if severance payments are owed to Executive by the Company pursuant to Section 4(b)(iii), above, the last date on which such payments are due to be paid to Executive (notwithstanding any reduction in such payments pursuant to Section 4(c)), Executive shall not, without the prior written consent of the Company (which consent may be granted or withheld in the Company's sole discretion), ) directly or indirectly, Participate in any line of business in which the Business is actively engaged or any line of business competitive with the Business anywhere in the United States and any other country in which the Company does business as of the Closing (the "Competitive Activities"). For purposes of this Agreement, the term "Participate" includes any direct or indirect interest in, or providing any direct or indirect assistance (whether financial, advisory or otherwise) to, any enterprise (or any affiliate thereof), whether as an officer, director, employee, partner, member, sole proprietor, agent, representative, independent contractor, consultant, creditor, stockholders, unitholder, owner or otherwise; provided that the term "Participate" shall not include ownership of less than 2% of the Common Stock of a publicly-held corporation whose Common Stock is traded on a national securities exchange or in the over-the-counter market. The parties agree that, without violating this this
Section 6(a), ) Executive may accept employment with any Person which engages in Competitive Activities; provided that such Person's business is diversified (and has separate and distinct divisions) and Executive is employed in a part of its business which does not engage in Competitive Activities; provided further that the Company, prior to Executive accepting such employment, shall receive separate written assurances satisfactory to the Company from the board of directors of such Person and Executive acknowledging that Executive is bound by this Section 6, the terms of which such Person has read, and covenanting that Executive will not render services directly or indirectly in connection with any product, process, system or service of any person or organization other than the Company, in existence or under development, which is the same as or competes with a product, process, system or service upon which Executive has worked during the last two years of Executive's employment by the Company or about which Executive acquires Confidential Information.
(b) During the Noncompete Period, Executive (a) except with respect to Executive's personal secretary, shall not, directly or indirectly contact, approach or solicit for the purpose of offering employment to or hiring (whether as an employee, consultant, agent, independent contractor or otherwise) or actually hire any person employed by the Company during the Noncompete Period and (b) shall not induce or attempt to induce any customer or other business relation of the Company to cease doing business with the Company or to engage in any business relationship which might materially harm the Company.
(c) Executive acknowledges that certain of the information, observations and data relating to the Company which he possesses or has obtained as an employee, officer, director or stockholder of the Company is the confidential and proprietary property of the Company ("Confidential Information"). Executive agrees that he shall not, directly or indirectly, use for his own purposes or use for or disclose to any third party any of such Confidential Information without the prior written consent of the Company, unless and to the extent that the aforementioned matters (i) become generally known to and available for use by the public other than as a result of a Executive's acts or omissions to act, or (ii) Executive is required by order of a court of competent jurisdiction (by subpoena or similar process) to disclose or discuss any Confidential Information (provided that in such case, Executive shall promptly inform the Company of such order, shall cooperate with the Company at the Company's expense in attempting to obtain a protective order or to otherwise restrict such disclosure, and shall only disclose Confidential Information to the minimum extent necessary to comply with any such court order). This Section 6(c) shall not apply to disclosures of Confidential Information by Executive during his employment with the Company in the ordinary course of business that he reasonably believes are necessary or appropriate and in the Company's best interests.
(d) The parties hereto acknowledge and agree that the Company will suffer irreparable harm from a breach by Executive of any of the covenants or agreements contained in this Section 6. In the event of an alleged or threatened breach by Executive of any of the provisions of this Section 6, the Company or their successors or assigns may, in addition to all other rights and remedies existing in its or their favor, apply to any court of competent jurisdiction for specific performance and/or injunctive or other equitable relief in order to enforce or prevent any violations of the provisions hereof. Executive acknowledges and agrees that the restrictions contained in this Section 6 are reasonable.
(e) If, at the time enforcement is sought of any of the provisions of this Section 6, a court holds that the restrictions stated herein are unreasonable under the circumstances then existing, the parties hereto agree that the maximum period, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area. Executive agrees that the covenants made in this Section 6 shall be construed as an agreement independent of any other provision of this Agreement and shall survive any order of a court of competent jurisdiction terminating any other provision of this Agreement.
Appears in 1 contract
Noncompetition Nonsolicitation Confidentiality. As a material inducement to the Company to enter into this Agreement and in consideration of the payment by the Company of the compensation detailed herein to Executive:
(a) During the period (the "Noncompete PeriodNONCOMPETE PERIOD") beginning on the date hereof and ending on the later of (x) the first anniversary of the Termination Date and (y) if severance payments are owed to Executive by the Company pursuant to Section 4(b)(iii)SECTION 4, above, the last date on which such payments are due to be paid to Executive (notwithstanding any reduction in such payments pursuant to Section 4(cSECTION 4(d)), Executive shall not, without the prior written consent of the Company (which consent may be granted or withheld in the Company's sole discretion), directly or indirectly, Participate in any line of business in which the Business is actively engaged or any line of business competitive with the Business anywhere in the United States and any other country in which the Company does business as of the Closing (the "Competitive ActivitiesCOMPETITIVE ACTIVITIES"). For purposes of this Agreement, the term "ParticipatePARTICIPATE" includes any direct or indirect interest in, or providing any direct or indirect assistance (whether financial, advisory or otherwise) to, any enterprise (or any affiliate thereof), whether as an officer, director, employee, partner, member, sole proprietor, agent, representative, independent contractor, consultant, creditor, stockholders, unitholder, owner or otherwise; provided that the term "Participate" shall not include ownership of less than 2% of the Common Stock of a publicly-held corporation whose Common Stock is traded on a national securities exchange or in the over-the-counter market. The parties agree that, without violating this Section SECTION 6(a), Executive may accept employment with any Person which engages in Competitive Activities; provided PROVIDED that such Person's business is diversified (and has separate and distinct divisions) and Executive is employed in a part of its business which does not engage in Competitive Activities; provided further PROVIDED FURTHER that the Company, prior to Executive accepting such employment, shall receive separate written assurances satisfactory to the Company from the board of directors of such Person and Executive acknowledging that Executive is bound by this Section SECTION 6, the terms of which such Person has read, and covenanting that Executive will not render services directly or indirectly in connection with any product, process, system or service of any person or organization other than the Company, in existence or under development, which is the same as or competes with a product, process, system or service upon which Executive has worked during the last two years of Executive's employment by the Company or about which Executive acquires Confidential Information.
(b) During the Noncompete Period, Executive (a) except with respect to Executive's personal secretary, shall not, directly or indirectly contact, approach or solicit for the purpose of offering employment to or hiring (whether as an employee, consultant, agent, independent contractor or otherwise) or actually hire any person employed by the Company during the Noncompete Period and (b) shall not induce or attempt to induce any customer or other business relation of the Company to cease doing business with the Company or to engage in any business relationship which might materially harm the Company.
(c) Executive acknowledges that certain of the information, observations and data relating to the Company which he possesses or has obtained as an employee, officer, director or stockholder of the Company is the confidential and proprietary property of the Company ("Confidential InformationCONFIDENTIAL INFORMATION"). Executive agrees that he shall not, directly or indirectly, use for his own purposes or use for or disclose to any third party any of such Confidential Information without the prior written consent of the Company, unless and to the extent that the aforementioned matters (i) become generally known to and available for use by the public other than as a result of a Executive's acts or omissions to act, or (ii) Executive is required by order of a court of competent jurisdiction (by subpoena or similar process) to disclose or discuss any Confidential Information (provided that in such case, Executive shall promptly inform the Company of such order, shall cooperate with the Company at the Company's expense in attempting to obtain a protective order or to otherwise restrict such disclosure, and shall only disclose Confidential Information to the minimum extent necessary to comply with any such court order). This Section 6(c) shall not apply to disclosures of Confidential Information by Executive during his employment with the Company in the ordinary course of business that he reasonably believes are necessary or appropriate and in the Company's best interests.
(d) The parties hereto acknowledge and agree that the Company will suffer irreparable harm from a breach by Executive of any of the covenants or agreements contained in this Section SECTION 6. In the event of an alleged or threatened breach by Executive of any of the provisions of this Section 6, the Company or their successors or assigns may, in addition to all other rights and remedies existing in its or their favor, apply to any court of competent jurisdiction for specific performance and/or injunctive or other equitable relief in order to enforce or prevent any violations of the provisions hereof. Executive acknowledges and agrees that the restrictions contained in this Section 6 are reasonable.
(e) If, at the time enforcement is sought of any of the provisions of this Section 6, a court holds that the restrictions stated herein are unreasonable under the circumstances then existing, the parties hereto agree that the maximum period, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area. Executive agrees that the covenants made in this Section 6 shall be construed as an agreement independent of any other provision of this Agreement and shall survive any order of a court of competent jurisdiction terminating any other provision of this Agreement.
Appears in 1 contract
Noncompetition Nonsolicitation Confidentiality. As a material inducement to the Company to enter into this Agreement and in consideration of the payment by the Company of the compensation detailed herein to Executive:
(a) During the period (the "Noncompete PeriodNONCOMPETE PERIOD") beginning on the date hereof and ending on the later of (x) the first anniversary of 18 months after the Termination Date and (y) if severance payments are owed to Executive by the Company pursuant to Section 4(b)(iii), above, the last date on which such payments are due to be paid to Executive (notwithstanding any reduction in such payments pursuant to Section 4(c))Date, Executive shall not, without the prior written consent of the Company (which consent may be granted or withheld in the Company's sole discretion), directly or indirectly, Participate in any line of business in which the Business Company is actively engaged or any line of business competitive with the Business Company anywhere in the United States and any other country in which the Company does business as of the Closing Termination Date (the "Competitive ActivitiesCOMPETITIVE ACTIVITIES"). For purposes of this Agreement, the term "ParticipatePARTICIPATE" includes any direct or indirect interest in, or providing any direct or indirect assistance (whether financial, advisory or otherwise) to, any enterprise (or any affiliate thereof), whether as an officer, director, employee, partner, member, sole proprietor, agent, representative, independent contractor, consultant, creditor, stockholders, unitholder, owner or otherwise; provided that PROVIDED THAT the term "Participate" shall not include beneficial ownership of less than 2% of the Common Stock a class of a publicly-held corporation whose Common Stock is securities traded on a national securities exchange or in the over-the-counter market. The parties agree that, without violating this Section 6(a), Executive may accept employment with any Person which engages in Competitive Activities; provided that such Person's business is diversified (and has separate and distinct divisions) and Executive is employed in a part of its business which does not engage in Competitive Activities; provided further that the Company, prior to Executive accepting such employment, shall receive separate written assurances satisfactory to the Company from the board of directors of such Person and Executive acknowledging that Executive is bound by this Section 6, the terms of which such Person has read, and covenanting that Executive will not render services directly or indirectly in connection with any product, process, system or service of any person or organization other than the Company, in existence or under development, which is the same as or competes with a product, process, system or service upon which Executive has worked during the last two years of Executive's employment by the Company or about which Executive acquires Confidential InformationNASDAQ Stock Market.
(b) During the Noncompete Period, Executive (ai) except with respect to Executive's personal secretarysecretary and Xxxxx X. Xxxxxx, Xx., shall not, and shall not attempt to, directly or indirectly contact, approach or solicit for the purpose of offering employment to or hiring (or retaining, or arrange to have any other Person hire or retain, or actually hire or retain, whether as an employee, consultant, agent, independent contractor or otherwise) , any Person employed or actually hire retained by NSP Holdings L.L.C., Company, or any person employed by the Company Subsidiary as an employee, consultant or independent contractor during the Noncompete Period and (bii) shall not, and shall not induce attempt to, call-on, solicit, service, advise, encourage or attempt to induce any customer customer, supplier, or other business relation of the Company NSP Holdings L.L.C., Company, or any Subsidiary to cease doing business business, or reduce its business, with the Company NSP Holdings L.L.C., Company, or any Subsidiary or to engage in any business relationship which might materially harm the NSP Holdings L.L.C., Company, or any Subsidiary.
(c) Executive acknowledges that certain of the information, observations and data relating to the Company and its Affiliates, or their business, products or services, which he possesses or has obtained knowledge of or will possess or obtain knowledge of as an employee, officer, director or stockholder equityholder of the Company is and will be the confidential and proprietary property of the Company and its Affiliates ("Confidential InformationCONFIDENTIAL INFORMATION"). Executive agrees that he shall not, directly or indirectly, use for his own purposes or use for or disclose to any third party any of such Confidential Information without the prior written consent of the Company, unless and to the extent that the aforementioned matters (i) become generally known to and available for use by the public other than as a result of a Executive's acts or omissions failures to act, or (ii) Executive is required by order of a court of competent jurisdiction (by subpoena or similar process) to disclose or discuss any Confidential Information (provided that in such case, Executive shall promptly inform the Company of such order, shall cooperate with the Company at the Company's expense in attempting to obtain a protective order or to otherwise restrict such disclosure, and shall only disclose Confidential Information to the minimum extent necessary to comply with any such court order). This Section 6(c) shall not apply to disclosures of Confidential Information by Executive during his employment with the Company in the ordinary course of business that he reasonably believes are necessary or appropriate and in the Company's best interests.
(d) The parties hereto acknowledge and agree that the Company will suffer irreparable harm from a breach by Executive of any of the covenants or agreements contained in this Section SECTION 6. In the event of an alleged or threatened breach by Executive of any of the provisions of this Section SECTION 6, the Company or their successors or assigns other appropriate Person may, in addition to all other rights and remedies existing in its or their favor, apply to any court of competent jurisdiction for specific performance and/or injunctive or other equitable relief in order to enforce or prevent any violations of the provisions hereof. Executive acknowledges and agrees that the restrictions contained in this Section SECTION 6 are reasonable.
(e) If, at the time enforcement is sought of any of the provisions of this Section 6SECTION 6 is sought, a court holds that the restrictions stated herein are unreasonable under the circumstances then existing, the parties hereto agree that the maximum period, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or geographical area. Executive agrees that the covenants made in this Section SECTION 6 shall be construed as an agreement independent of any other provision of this Agreement and shall survive any order of a court of competent jurisdiction terminating any other provision of this Agreement.
(f) Executive hereby agrees and acknowledges (i) that the Company and its Affiliates have protectable interests in the information, data, and plans, both technical and business in nature, which are treated as confidential, as well as the goodwill and specialized knowledge acquired by Executive during the course of Executive's employment with the Company;(ii) that the provisions of this SECTION 6 are in consideration of (A) employment with the Company, (B) access to and use of Confidential Information, including but not limited to information, data, and plans, both technical and business in nature, such as customer lists and records, sales records and marketing plans, research and technical reports and records, formulas, processes, programs, inventions, patent applications, designs and drawings, instructions and training manuals, business and financial information, salary information, contracts and other legal documents, and correspondence to which the Company has been a party, (C) access to and Executive's development on behalf of the Company of near-permanent relationships with the Company's customers, and (D) additional good and valuable consideration the receipt and sufficiency of which is hereby acknowledged; (iii) that the restrictions contained in this SECTION 6 do not preclude Executive from earning a livelihood, nor do they unreasonably impose limitations on Executive's ability to earn a living, and that the potential harm to the Company or its Affiliates of the non-enforcement of this SECTION 6 outweighs any harm to Executive of their enforcement by injunction or otherwise; and (iv) that Executive has carefully reviewed this Agreement and that he has consulted with independent legal counsel regarding his rights and obligations under this Agreement (or, after carefully reviewing this Agreement, was given the opportunity to, but has freely decided not to, consult with independent legal counsel), has given careful consideration to the restraints imposed upon Executive by this Agreement, fully understands the terms and conditions contained herein and is in full accord as to their necessity for the reasonable and proper protection of the Company's near-permanent customer relationships and employee relationships and Confidential Information and those of its Affiliates, and Executive intends for such terms to be binding on and enforceable against him, and that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area.
(g) Executive agrees that the provisions of this SECTION 6 shall inure to the benefit of and be enforceable by any Person with whom or into which the Company shall merge or consolidate, regardless whether the Company shall be the survivor of such transaction, or to any Person acquiring all or substantially all of the Company's assets or business.
Appears in 1 contract
Noncompetition Nonsolicitation Confidentiality. As a material inducement to the Company to enter into this Agreement and in consideration of the payment by the Company of the compensation detailed herein to Executive:
(a) During the period (the "Noncompete Period"NONCOMPETITION. THIS SECTION 9(a) beginning on the date hereof and ending on the later of (x) the first anniversary of the Termination Date and (y) if severance payments are owed to Executive by the Company pursuant to Section 4(b)(iii)SHALL HAVE NO FORCE OR EFFECT, aboveAND SHALL NOT BE DEEMED A PART OF THE AGREEMENT DURING ANY AND ALL PERIODS IN WHICH THE EXECUTIVE PERFORMS SERVICES AS AN EMPLOYEE OF THE COMPANY PRINCIPALLY IN THE STATE OF CALIFORNIA, the last date on which such payments are due to be paid to Executive (notwithstanding any reduction in such payments pursuant to Section 4(c)), Executive shall not, without the prior written consent of the Company (which consent may be granted or withheld in the Company's sole discretion), directly or indirectly, Participate in any line of business in which the Business is actively engaged or any line of business competitive with the Business anywhere in the United States and any other country in which the Company does business as of the Closing (the "Competitive Activities"). For purposes of this Agreement, the term "Participate" includes any direct or indirect interest in, or providing any direct or indirect assistance (whether financial, advisory or otherwise) to, any enterprise (or any affiliate thereof), whether as an officer, director, employee, partner, member, sole proprietor, agent, representative, independent contractor, consultant, creditor, stockholders, unitholder, owner or otherwise; provided that the term "Participate" shall not include ownership of less than 2% of the Common Stock of a publicly-held corporation whose Common Stock is traded on a national securities exchange or in the over-the-counter marketBUT SHALL BECOME IMMEDIATELY EFFECTIVE IF AND TO THE EXTENT THE EXECUTIVE PERFORMS SERVICES AS AN EMPLOYEE OF THE COMPANY PRINCIPALLY IN A JURISDICTION OTHER THAN THE STATE OF CALIFORNIA. The parties agree that, without violating this Section 6(a), Executive may accept employment with any Person which engages in Competitive Activities; provided that such Person's business is diversified (and has separate and distinct divisions) and Executive is employed in a part of its business which does not engage in Competitive Activities; provided further that the Company, prior to Executive accepting such employment, shall receive separate written assurances satisfactory to the Company from the board of directors of such Person and Executive acknowledging that Executive is bound by this Section 6, the terms of which such Person has read, and covenanting that Executive will not render services directly or indirectly in connection with any product, process, system or service of any person or organization other than the Company, in existence or under development, which is the same as or competes with a product, process, system or service upon which Executive has worked during the last two years of Executive's employment by the Company or about which Executive acquires Confidential Information.
(b) During the Noncompete Period, Executive (a) except with respect to Executive's personal secretary, shall not, directly or indirectly contact, approach or solicit for the purpose of offering employment to or hiring (whether as an employee, consultant, agent, independent contractor or otherwise) or actually hire any person employed by the Company during the Noncompete Period and (b) shall not induce or attempt to induce any customer or other business relation of the Company to cease doing business with the Company or to engage in any business relationship which might materially harm the Company.
(c) Executive acknowledges that certain in the course of the information, observations and data relating to the Company which he possesses or has obtained as an employee, officer, director or stockholder of the Company is the confidential and proprietary property of the Company ("Confidential Information"). Executive agrees that he shall not, directly or indirectly, use for his own purposes or use for or disclose to any third party any of such Confidential Information without the prior written consent of the Company, unless and to the extent that the aforementioned matters (i) become generally known to and available for use by the public other than as a result of a Executive's acts or omissions to act, or (ii) Executive is required by order of a court of competent jurisdiction (by subpoena or similar process) to disclose or discuss any Confidential Information (provided that in such case, Executive shall promptly inform the Company of such order, shall cooperate with the Company at the Company's expense in attempting to obtain a protective order or to otherwise restrict such disclosure, and shall only disclose Confidential Information to the minimum extent necessary to comply with any such court order). This Section 6(c) shall not apply to disclosures of Confidential Information by Executive during his employment with the Company in and its Affiliates and their predecessors, he has and will continue to become familiar with the ordinary course trade secrets of, and other confidential information concerning, the Company and its Affiliates, that the Executive's services will be of business special, unique and extraordinary value to the Company and its Affiliates and that he reasonably believes are necessary or appropriate and in the Company's best interests.
(d) The parties hereto acknowledge ability to accomplish its purposes and agree that to successfully pursue its business plan and compete in the marketplace depends substantially on the skills and expertise of the Executive. Therefore, and in further consideration of the compensation being paid to the Executive hereunder, the Executive agrees that, during the Employment Period and for a period of twelve months following the Executive's termination of employment with the Company will suffer irreparable harm from for any reason other than a breach by Executive termination of any of employment in which Section 8(d) hereof applies (in which case the covenants or agreements contained restrictions set forth in this Section 6. In the event of an alleged or threatened breach by Executive of any of the provisions 9 of this Section 6Agreement shall not apply) (the "Restricted Period"), he shall not directly or indirectly own, manage, control, participate in, consult with, render services for, or in any manner engage in any business competing with the businesses of the Company or their successors or assigns mayits Affiliates, in addition any country where the Company or its Affiliates conducts business; provided, however, that passive investments amounting to all other rights and remedies existing in its or their favor, apply to any court of competent jurisdiction for specific performance and/or injunctive or other equitable relief in order to enforce or prevent any violations no more than three percent of the provisions hereof. Executive acknowledges and agrees that the restrictions contained in this Section 6 are reasonable.
(e) If, at the time enforcement is sought of any of the provisions of this Section 6, a court holds that the restrictions stated herein are unreasonable under the circumstances then existing, the parties hereto agree that the maximum period, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area. Executive agrees that the covenants made in this Section 6 shall be construed as an agreement independent of any other provision of this Agreement and shall survive any order voting equity of a court of competent jurisdiction terminating any other provision of this Agreementbusiness shall not be prohibited hereby.
Appears in 1 contract
