Noncompetition; Nonsolicitation. (a) Executive acknowledges the highly competitive nature of the Company’s business and that access to the Company’s confidential records and proprietary information renders Executive special and unique within the Company’s industry. In consideration of the amounts that may hereafter be paid to Executive pursuant to this Agreement (including, without limitation, Sections 4 and 5), Executive agrees that during the Term (including any extensions thereof) and during the Covered Time (as defined in Section 6.1(e)), Executive, alone or with others, will not, directly or indirectly, engage (as owner, investor, partner, stockholder, employer, employee, consultant, advisor, director or otherwise) in any Competing Business. For purposes of this Section 6, “Competing Business” shall mean any business (i) involving design and production of instant lottery tickets and the management of related marketing and distribution programs; manufacture, sale, operation or management of on-line lottery systems (Lotto-type games); involving development and commercialization of licensed and other proprietary game entertainment for all lottery product channels; involving provision of wagering (whether pari-mutuel (pooled) or otherwise) or venue management services for racetracks and off-track betting facilities; production of prepaid cellular phone cards; or any other business in which the Company is then or was within the previous twenty-four months engaged or in which the Company, to Executive’s actual knowledge, intends to engage during the Term or the Covered Time; and (ii) which Competing Business is conducted or planned to be conducted anywhere in the United States or in any other geographic area in which such business was conducted or planned to be conducted by the Company; provided, further, that this Section 6.1(a) shall not restrict Executive from engaging in (and the term “Competing Business” shall not include) any business in which the Company no longer engages or plans to engage; and provided further that activities of the Company, or activities engaged in by Executive for or on behalf of the Company, are not restricted by this Section 6.1.(a) and shall not constitute a “Competing Business.” Ownership of (i) the securities of any entity for which a Competing Business represents less than 10% of net sales or net income (as determined in accordance with generally accepted accounting principles) for the most recent fiscal year (or if such entity has not completed a fiscal year, net sales or net income projected for its first fiscal year) or (ii) not more than two percent of the equity securities of any company having securities listed on an exchange or regularly traded in the over-the-counter market shall not, of itself, be deemed inconsistent with this Section 6.1(a). Nothing herein shall require Executive to sell or otherwise dispose of any securities of any entity if the acquisition of such securities did not violate the terms of this Section 6.1(a) at the time of such acquisition. (b) In further consideration of the amounts that may hereafter be paid to Executive pursuant to this Agreement (including, without limitation, Sections 4 and 5), Executive agrees that during the Term (including any extensions thereof) and during the Covered Time Executive shall not, directly or indirectly, (i) solicit or attempt to induce any of the employees, agents, consultants or representatives of the Company to terminate his, her, or its relationship with the Company; (ii) solicit or attempt to induce any of the employees, agents, consultants or representatives of the Company to become employees, agents, consultants or representatives of any other person or entity; (iii) solicit or attempt to induce any customer, vendor or distributor of the Company to curtail or cancel any business with the Company; or (iv) hire any person who, to Executive’s actual knowledge, is, or was within 180 days prior to such hiring, an employee of the Company. (c) During the Term (including any extensions thereof) and during the Covered Time, Executive agrees that upon the earlier of Executive’s (i) negotiating with any Competitor (as defined below) concerning the possible employment of Executive by the Competitor, (ii) responding to (other than for the purpose of declining) an offer of employment from a Competitor, or (iii) becoming employed by a Competitor, (x) Executive will provide copies of Section 6 of this Agreement to the Competitor, and (y) in the case of any circumstance described in (iii) above occurring during the Covered Time, and in the case of any circumstance described in (i) or (ii) above occurring during the Term or during the Covered Time, Executive will promptly provide notice to the Company of such circumstances. Executive further agrees that the Company may provide notice to a Competitor of Executive’s obligations under this Agreement. For purposes of this Agreement, “Competitor” shall mean any entity (other than the Company) that engages, directly or indirectly, in the United States in any Competing Business.
Appears in 1 contract
Noncompetition; Nonsolicitation. (a) The Executive acknowledges that in the highly competitive nature course of his employment with the Company’s business and that access to the Company’s confidential records and proprietary information renders Executive special and unique within the Company’s industry. In consideration of the amounts that may hereafter be paid to Executive Company pursuant to this Agreement he will become familiar with trade secrets and customer lists of, and other confidential information concerning, the Company and its subsidiaries, affiliates and clients and that his services have been and will be of special, unique and extraordinary value to the Company.
(including, without limitation, Sections 4 and 5), b) The Executive agrees that during the Term Employment Period and for a period of two years thereafter (including the "Noncompetition Period") he shall not in any extensions thereof) and during the Covered Time (as defined in Section 6.1(e)), Executive, alone or with others, will notmanner, directly or indirectly, engage (through any person, firm, corporation or enterprise, alone or as ownera member of a partnership or as an officer, investor, partnerdirector, stockholder, employerinvestor or employee of or advisor or consultant to any person, employeefirm, consultant, advisor, director corporation or enterprise or otherwise) , engage or be engaged, or assist any other person, firm, corporation or enterprise in engaging or being engaged, in any Competing BusinessCompetitive Activity. For purposes of this Section 6, “Competing Business” A Competitive Activity shall mean any a business that (i) involving design and production of instant lottery tickets and is being conducted by the management of related marketing and distribution programs; manufacture, sale, operation or management of on-line lottery systems (Lotto-type games); involving development and commercialization of licensed and other proprietary game entertainment for all lottery product channels; involving provision of wagering (whether pari-mutuel (pooled) or otherwise) or venue management services for racetracks and off-track betting facilities; production of prepaid cellular phone cards; Company or any other business subsidiary at the time in which the Company is then or was within the previous twenty-four months engaged or in which the Company, to Executive’s actual knowledge, intends to engage during the Term or the Covered Time; question and (ii) which Competing Business was being conducted at the date of the termination of the Executive's employment, provided that Competitive Activities shall not include any business that (x) is conducted or planned to be conducted anywhere not in the United States business of distributing, managing and reproducing print and digital information for the publishing, retailing, merchandising or in any other geographic area in which such business was conducted information technology markets or planned to be conducted by the Company; provided, further, that this Section 6.1(a(y) shall not restrict Executive from engaging in (and the term “Competing Business” shall not include) any business in which the Company no longer engages or plans to engage; and provided further that activities contributes less than 5% of the Company's revenues on a consolidated basis for the fiscal year in question. Notwithstanding anything to the contrary in this Section 6(b), or activities engaged in by Executive for or on behalf an activity shall not be deemed to be a Competitive Activity (A) solely as a result of the Company, are Executive being employed by or otherwise associated with a business of which a unit is in competition with the Company or any subsidiary but as to which unit he does not restricted have direct or indirect responsibilities for the products or product lines involved or (B) if the activity contributes less than 5% of the revenues for the fiscal year in question of the business by this Section 6.1.(awhich the Executive is employed or with which he is otherwise associated.
(c) and The Executive further agrees that during the Noncompetition Period he shall not constitute a “Competing Business.” Ownership of (i) in any manner, directly or indirectly, induce or attempt to induce any employee of or advisor or consultant to the securities Company or any of its subsidiaries or affiliates to terminate or abandon his or her or its employment or relationship for any entity for which a Competing Business represents less than 10% of net sales or net income (as determined in accordance with generally accepted accounting principles) for the most recent fiscal year (or if such entity has not completed a fiscal yearpurpose whatsoever, net sales or net income projected for its first fiscal year) or (ii) in connection with any business to which Section 6(b) applies, call on, service, solicit or otherwise do business with any customer of the Company or any of its subsidiaries or affiliates; provided, however, that the restriction contained in clause (i) of this Section 6(c) shall not apply to, or interfere with, the proper performance by the Executive of his duties pursuant to Section 2 of this Agreement.
(d) Nothing in this Section 6 shall prohibit the Executive from being (i) a stockholder in a mutual fund or a diversified investment company or (ii) a passive owner of not more than two percent of the outstanding common stock, capital stock and equity securities of any company having securities listed on an exchange firm, corporation or regularly traded enterprise so long as the Executive has no active participation in the over-the-counter market shall not, of itself, be deemed inconsistent with this Section 6.1(a). Nothing herein shall require Executive to sell or otherwise dispose of any securities of any entity if the acquisition business of such securities did not violate the terms firm, corporation or enterprise.
(e) If, at any time of enforcement of this Section 6.1(a) at 6, a court or an arbitrator holds that the time of restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum period, scope or geographical area reasonable under such acquisition.
(b) In further consideration of the amounts that may hereafter circumstances shall be paid to Executive pursuant to this Agreement (including, without limitation, Sections 4 and 5), Executive agrees that during the Term (including any extensions thereof) and during the Covered Time Executive shall not, directly or indirectly, (i) solicit or attempt to induce any of the employees, agents, consultants or representatives of the Company to terminate his, her, or its relationship with the Company; (ii) solicit or attempt to induce any of the employees, agents, consultants or representatives of the Company to become employees, agents, consultants or representatives of any other person or entity; (iii) solicit or attempt to induce any customer, vendor or distributor of the Company to curtail or cancel any business with the Company; or (iv) hire any person who, to Executive’s actual knowledge, is, or was within 180 days prior to such hiring, an employee of the Company.
(c) During the Term (including any extensions thereof) and during the Covered Time, Executive agrees that upon the earlier of Executive’s (i) negotiating with any Competitor (as defined below) concerning the possible employment of Executive by the Competitor, (ii) responding to (other than substituted for the purpose of declining) an offer of employment from a Competitorstated period, scope or (iii) becoming employed by a Competitor, (x) Executive will provide copies of Section 6 of this Agreement to the Competitor, area and (y) in the case of any circumstance described in (iii) above occurring during the Covered Time, and in the case of any circumstance described in (i) or (ii) above occurring during the Term or during the Covered Time, Executive will promptly provide notice to the Company of such circumstances. Executive further agrees that the Company may provide notice court shall be allowed to a Competitor of Executive’s obligations under this Agreement. For purposes of this Agreementrevise the restrictions contained herein to cover the maximum period, “Competitor” shall mean any entity (other than the Company) that engages, directly or indirectly, in the United States in any Competing Businessscope and area permitted by law.
Appears in 1 contract
Samples: Employment Agreement (Donnelley Enterprise Solutions Inc)
Noncompetition; Nonsolicitation. (a) Executive acknowledges and recognizes the highly competitive nature of the Company’s business and that access to the Company’s confidential records and proprietary information renders Executive him special and unique within the Company’s industry. In consideration of the payment by the Company to Executive of amounts that may hereafter be paid to Executive pursuant to this Agreement (including, without limitation, pursuant to Sections 4 5 and 5)7 hereof) and other obligations undertaken by the Company hereunder, Executive agrees that during the Term period beginning on the Date of Termination and ending one year after the Date of Termination (including any extensions thereof) and during the “Covered Time (as defined in Section 6.1(e)Time”), ExecutiveExecutive shall not, alone or with othersexcept as permitted by the Company upon its prior written consent, will notenter, directly or indirectly, into the employ of or render or engage (as ownerin, investordirectly or indirectly, partner, stockholder, employer, employee, consultant, advisor, director or otherwise) in any services to any Competing Business within the Restricted Area. However, it shall not be a violation of the immediately preceding sentence for the Executive to be employed by, or render services to, a Competing Business, if the Executive renders those services only in lines of business of the Competing Business that are not directly competitive with the primary lines of business of Avangrid, Inc., its subsidiaries or affiliates, or are outside of the Restricted Area. For purposes Furthermore, the provisions of this Section 6, “Competing Business” shall mean any business (i10.1(a) involving design and production of instant lottery tickets and the management of related marketing and distribution programs; manufacture, sale, operation or management of on-line lottery systems (Lotto-type games); involving development and commercialization of licensed and other proprietary game entertainment for all lottery product channels; involving provision of wagering (whether pari-mutuel (pooled) or otherwise) or venue management services for racetracks and off-track betting facilities; production of prepaid cellular phone cards; or any other business in which the Company is then or was within the previous twenty-four months engaged or in which the Company, to Executive’s actual knowledge, intends to engage during the Term or the Covered Time; and (ii) which Competing Business is conducted or planned to will not be conducted anywhere in the United States or in any other geographic area in which such business was conducted or planned to be conducted by the Company; provided, further, that this Section 6.1(a) shall not restrict deemed breached merely because Executive from engaging in (and the term “Competing Business” shall not include) any business in which the Company no longer engages or plans to engage; and provided further that activities owns less than 2% of the Company, or activities engaged in by Executive for or on behalf outstanding common stock of the Company, are not restricted by this Section 6.1.(a) and shall not constitute a “Competing Business.” Ownership of (i) the securities of any entity for which a Competing Business represents less than 10% of net sales or net income (as determined in accordance with generally accepted accounting principles) for the most recent fiscal year (or if such entity has not completed a fiscal year, net sales or net income projected for its first fiscal year) or (ii) not more than two percent of the equity securities of any company having securities listed on an exchange or regularly publicly-traded in the over-the-counter market shall not, of itself, be deemed inconsistent with this Section 6.1(a). Nothing herein shall require Executive to sell or otherwise dispose of any securities of any entity if the acquisition of such securities did not violate the terms of this Section 6.1(a) at the time of such acquisitioncompany.
(b) In further consideration of the payment by the Company to Executive of amounts that may hereafter be paid to Executive pursuant to this Agreement (including, without limitation, pursuant to Sections 4 5 and 5)7 hereof) and other obligations undertaken by the Company hereunder, Executive agrees that during the Term (including any extensions thereof) and during the Covered Time Executive Time, he shall not, directly or indirectly, (i) solicit or attempt to induce any of the employees, agents, consultants or representatives of except as permitted by the Company to terminate hisupon its previous written consent, hersolicit, on his own behalf or its relationship with the Company; (ii) solicit or attempt to induce any on behalf of the employees, agents, consultants or representatives of the Company to become employees, agents, consultants or representatives of any other another person or entity; (iii) solicit or attempt to induce , any customeremployee of Avangrid, vendor or distributor of the Company to curtail or cancel any business with the Company; or (iv) hire any person who, to Executive’s actual knowledge, isInc., or was within 180 days prior to such hiring, an any employee of the Company.
(c) During the Term (including any extensions thereof) and during the Covered TimeAvangrid, Executive agrees that upon the earlier of ExecutiveInc.’s (i) negotiating with any Competitor (subsidiaries or affiliates, for hire or retention as defined below) concerning the possible employment of Executive by the Competitoran employee, (ii) responding to (other than for the purpose of declining) an offer of employment from a Competitorconsultant, or (iii) becoming employed by a Competitor, (x) Executive will provide copies of Section 6 of this Agreement to the Competitor, and (y) in the case of any circumstance described in (iii) above occurring during the Covered Time, and in the case of any circumstance described in (i) or (ii) above occurring during the Term or during the Covered Time, Executive will promptly provide notice to the Company of such circumstances. Executive further agrees that the Company may provide notice to a Competitor of Executive’s obligations under this Agreement. For purposes of this Agreement, “Competitor” shall mean any entity (other than the Company) that engages, directly or indirectly, in the United States in any Competing Businessservice provider.
Appears in 1 contract
Noncompetition; Nonsolicitation. (a) Executive acknowledges the highly competitive nature of the Company’s business and that access to the Company’s confidential records and proprietary information renders Executive special and unique within the Company’s industry. In consideration of the amounts that may hereafter be paid to Executive pursuant to this Agreement (including, without limitation, Sections 3, 4 and 56), Executive agrees that during the Term (including any extensions thereof) and during the Covered Time (as defined in Section 6.1(e7.1(e)), Executive, alone or with others, will not, directly or indirectly, engage (as owner, investor, partner, stockholder, employer, employee, consultant, advisor, director or otherwise) in any Competing Business. For purposes of this Section 67, “Competing Business” shall mean any business (ia) involving design and production of instant lottery tickets and the management of related marketing and distribution programs; , manufacture, sale, operation or management of on-line lottery systems (Lotto-type games); involving , development and commercialization of licensed and other proprietary game entertainment for all lottery product channels; involving , provision of wagering (whether pari-mutuel (pooled) or otherwise) or and venue management services for racetracks and off-track betting facilities; production of prepaid cellular phone cards; , or any other business in which the Company or its affiliates is then or was within the previous twenty-four months engaged or in which the Company, to Executive’s actual knowledge, intends to engage during the Term or the Covered TimeTime (as defined below); and (iib) in which Competing Business is conducted the Executive was engaged or planned involved (whether in an executive or supervisory capacity or otherwise) on behalf of the Company or with respect to be conducted which the Executive has obtained proprietary or confidential information; (c) anywhere in the United States or in any other geographic area in which such business was conducted or planned to be conducted by the Company; provided, further, that this Section 6.1(a) shall not restrict Executive from engaging in (and the term “Competing Business” shall not include) any business in which the Company no longer engages or plans to engage; and provided further that activities of the Company, or activities engaged in by Executive for or on behalf of the Company, are not restricted by this Section 6.1.(a) and shall not constitute a “Competing Business.” Ownership of (i) the securities of any entity for which a Competing Business represents less than 10% of net sales or net income (as determined in accordance with generally accepted accounting principles) for the most recent fiscal year (or if such entity has not completed a fiscal year, net sales or net income projected for its first fiscal year) or (ii) not more than two percent of the equity securities of any company having securities listed on an exchange or regularly traded in the over-the-counter market shall not, of itself, be deemed inconsistent with this Section 6.1(a). Nothing herein shall require Executive to sell or otherwise dispose of any securities of any entity if the acquisition of such securities did not violate the terms of this Section 6.1(a) at the time of such acquisition.
(b) In further consideration of the amounts that may hereafter be paid to Executive pursuant to this Agreement (including, without limitation, Sections 3, 4 and 56), Executive agrees that during the Term (including any extensions thereof) and during the Covered Time Executive shall not, directly or indirectly, without the Company’s approval, (i) solicit or attempt to induce any of the employees, agents, consultants or representatives of the Company to terminate his, her, or its relationship with the Company; (ii) solicit or attempt to induce any of the employees, agents, consultants or representatives of the Company to become employees, agents, consultants or representatives of any other person or entity; (iii) solicit or attempt to induce any customer, vendor or distributor of the Company to curtail or cancel any business with the Company; or (iv) hire any person who, to Executive’s actual knowledge, is, or was within 180 days prior to such hiring, an employee of the Company.
(c) During the Term (including any extensions thereof) and during the Covered Time, Executive agrees that upon the earlier of Executive’s (i) negotiating during the Term (including any extensions thereof) with any Competitor (as defined below) concerning the possible employment of Executive by the Competitor, (ii) responding to (other than for the purpose of declining) during the Term (including any extensions thereof) to an offer of employment from a Competitor, or (iii) becoming employed by a CompetitorCompetitor during the Term or the Covered Time, (x) Executive will provide copies of Section 6 7 of this Agreement to the Competitor, Competitor and (y) in the case of any circumstance described in (iii) above occurring during the Covered Time, and in the case of any circumstance described in (i) or (ii) above occurring during the Term or during the Covered Time, Executive will promptly provide reasonable notice to the Company of such circumstances. Executive further agrees that the Company may provide notice to a Competitor of Executive’s obligations under this Agreement. For purposes of this Agreement, “Competitor” shall mean any entity (other than the Company, its subsidiaries or affiliates) that engages, directly or indirectly, in the United States in any Competing Business.
Appears in 1 contract
Noncompetition; Nonsolicitation. (a) Executive acknowledges From and after the highly competitive nature of Closing Date, the Company’s business and that access Seller shall not use, divulge, furnish or make accessible to anyone any proprietary, material non-public, confidential or secret information to the Company’s confidential records and proprietary information renders Executive special and unique within extent relating to the Company’s industry. In consideration of the amounts that may hereafter be paid to Executive pursuant to this Agreement Company (including, without limitation, Sections 4 customer lists, supplier lists and 5)pricing and marketing arrangements with customers or suppliers) or the Business, Executive agrees that during and the Term (including any extensions thereof) Seller shall cooperate reasonably with the Purchaser in preserving such proprietary, confidential or secret aspects of the Company and during the Covered Time (Business. Notwithstanding the foregoing, nothing in this Agreement shall prohibit the disclosure of the tax treatment and tax structure, each as defined in Treasury Regulations Section 6.1(e))1.6011-4, Executive, alone or with others, will not, directly or indirectly, engage (as owner, investor, partner, stockholder, employer, employee, consultant, advisor, director or otherwise) in any Competing Business. For purposes of this Section 6, “Competing Business” shall mean any business (i) involving design and production of instant lottery tickets and the management of related marketing and distribution programs; manufacture, sale, operation or management of on-line lottery systems (Lotto-type games); involving development and commercialization of licensed and other proprietary game entertainment for all lottery product channels; involving provision of wagering (whether pari-mutuel (pooled) or otherwise) or venue management services for racetracks and off-track betting facilities; production of prepaid cellular phone cards; or any other business in which the Company is then or was within the previous twenty-four months engaged or in which the Company, to Executive’s actual knowledge, intends to engage during the Term or the Covered Time; and (ii) which Competing Business is conducted or planned to be conducted anywhere in the United States or in any other geographic area in which such business was conducted or planned to be conducted by the Company; provided, further, that this Section 6.1(a) shall not restrict Executive from engaging in (and the term “Competing Business” shall not include) any business in which the Company no longer engages or plans to engage; and provided further that activities of the Company, or activities engaged in by Executive for or on behalf of transaction (but no other details about the Company, are not restricted matters covered by this Section 6.1.(a) and shall not constitute a “Competing Business.” Ownership of (i) the securities of any entity for which a Competing Business represents less than 10% of net sales or net income (as determined in accordance with generally accepted accounting principles) for the most recent fiscal year (or if such entity has not completed a fiscal yearAgreement, net sales or net income projected for its first fiscal year) or (ii) not more than two percent of the equity securities of any company having securities listed on an exchange or regularly traded in the over-the-counter market shall not, of itself, be deemed inconsistent with this Section 6.1(a). Nothing herein shall require Executive to sell or otherwise dispose of any securities of any entity if the acquisition of such securities did not violate the terms of this Section 6.1(a) at the time of such acquisition.
(b) In further consideration of the amounts that may hereafter be paid to Executive pursuant to this Agreement (including, without limitation, Sections 4 and 5the identities of the parties except as may be required by legal rule, regulation or legal process). For a period of three (3) years after the Closing Date, Executive agrees that during the Term (including any extensions thereof) and during the Covered Time Executive Seller shall not, and it shall cause each of its controlled Affiliates, officers and directors (so long as such officers and directors are serving as such) not to, directly or indirectly, (i) solicit or attempt to induce engage in any of Competitive Business Activities anywhere in the employees, agents, consultants or representatives of the Company to terminate his, her, or its relationship with the Companyworld; (ii) solicit own stock or attempt to induce otherwise have an equity interest in or be affiliated with any person or entity engaged in Competitive Business Activities (except as a stockholder holding less than 5% of the employees, agents, consultants or representatives stock of the Company to become employees, agents, consultants or representatives of any other person or entitya publicly held corporation); (iii) solicit or attempt to induce any customer, vendor or distributor of the Company to curtail or cancel any business with the Company; or (iv) hire any person who, to Executive’s actual knowledge, is, or was within 180 days prior to such hiring, an employee of the Company.
(c) During the Term (including any extensions thereof) and during the Covered Time, Executive agrees that upon the earlier of Executive’s (i) negotiating with any Competitor (as defined below) concerning the possible employment of Executive by the Competitor, (ii) responding to (other than for the purpose of declining) an offer of employment from a Competitor, or (iii) becoming employed by a Competitorutilize its special knowledge of the Business or its relationships with customers, (x) Executive will provide copies of Section 6 of this Agreement suppliers or others to the Competitor, and (y) in the case of any circumstance described in (iii) above occurring during the Covered Time, and in the case of any circumstance described in (i) or (ii) above occurring during the Term or during the Covered Time, Executive will promptly provide notice to compete with the Company or the Purchaser in its conduct of such circumstancesthe Business after the Closing Date. Executive further agrees that the Company may provide notice to a Competitor of Executive’s obligations under this Agreement. For purposes of this Agreement, “Competitor” The Seller shall mean any entity (other than the Company) that engagesnot, directly or indirectly, in for a period of three (3) years from the United States Closing Date, (i) solicit for hire or enter into any contractual arrangement with any Employee without the prior written consent of the Purchaser unless such Employee has not been employed by the Company or the Purchaser for a period of one year; or (ii) call on or solicit any of the customers or suppliers of the Business or make known the names and addresses of such customers or suppliers or any information relating in any Competing Businessmanner to the Business or the Company's relationships with such customers or suppliers. The Seller agrees that a violation of this Section will cause irreparable injury to the Purchaser, and the Purchaser shall be entitled, in addition to any other rights and remedies it may have at law or in equity, to an injunction enjoining and restraining the Seller from doing or continuing to do any such violation and any other violations or threatened violations of this Section. The Seller acknowledges and agrees that the covenants set forth in this Section are reasonable and valid in scope and in all other respects. If any of such covenants is found to be invalid or unenforceable by a final determination of a court of competent jurisdiction (i) the remaining terms and provisions hereof shall be unimpaired and (ii) the invalid or unenforceable term or provision shall be deemed replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision. In the event that, notwithstanding the first sentence of this paragraph (c), any of the provisions of this Section relating to scope of the covenants contained therein or the nature of the business restricted thereby shall be declared by a court of competent jurisdiction to exceed the maximum restrictiveness such court deems enforceable, such provision shall be deemed to be replaced herein by the maximum restriction deemed enforceable by such court.
Appears in 1 contract
Samples: Stock Purchase Agreement (International Microcomputer Software Inc /Ca/)
Noncompetition; Nonsolicitation. (a) Executive acknowledges and recognizes the highly competitive nature of the Company’s business and that access to the Company’s confidential records and proprietary information renders Executive him special and unique within the Company’s industry. In consideration of the payment by the Company to Executive of amounts that may hereafter be paid to Executive pursuant to this Agreement (including, without limitation, pursuant to Sections 3 and 4 hereof) and 5)other obligations undertaken by the Company hereunder, Executive agrees that during (i) his employment with the Term Company, and (including any extensions thereofii) the period beginning on the date of termination of employment and during ending one year after the date of termination of employment (the “Covered Time (as defined in Section 6.1(e)Time”), Executive, alone or with others, will Executive shall not, directly or indirectly, engage (as owner, investor, partner, stockholder, employer, employee, consultant, advisor, director or otherwise) in any Competing Business. For purposes Business in any Restricted Area (each as defined below), provided that the provisions of this Section 6, “Competing Business” shall mean any business (i5.2(a) involving design and production of instant lottery tickets and the management of related marketing and distribution programs; manufacture, sale, operation or management of on-line lottery systems (Lotto-type games); involving development and commercialization of licensed and other proprietary game entertainment for all lottery product channels; involving provision of wagering (whether pari-mutuel (pooled) or otherwise) or venue management services for racetracks and off-track betting facilities; production of prepaid cellular phone cards; or any other business in which the Company is then or was within the previous twenty-four months engaged or in which the Company, to Executive’s actual knowledge, intends to engage during the Term or the Covered Time; and (ii) which Competing Business is conducted or planned to will not be conducted anywhere in the United States or in any other geographic area in which such business was conducted or planned to be conducted by the Company; provided, further, that this Section 6.1(a) shall not restrict deemed breached merely because Executive from engaging in (and the term “Competing Business” shall not include) any business in which the Company no longer engages or plans to engage; and provided further that activities owns less than 5% of the Company, or activities engaged in by Executive for or on behalf outstanding common stock of the Company, are not restricted by this Section 6.1.(a) and shall not constitute a “Competing Business.” Ownership of (i) the securities of any entity for which a Competing Business represents less than 10% of net sales or net income (as determined in accordance with generally accepted accounting principles) for the most recent fiscal year (or if such entity has not completed a fiscal year, net sales or net income projected for its first fiscal year) or (ii) not more than two percent of the equity securities of any company having securities listed on an exchange or regularly publicly-traded in the over-the-counter market shall not, of itself, be deemed inconsistent with this Section 6.1(a). Nothing herein shall require Executive to sell or otherwise dispose of any securities of any entity if the acquisition of such securities did not violate the terms of this Section 6.1(a) at the time of such acquisition.
(b) In further consideration of the amounts that may hereafter be paid to Executive pursuant to this Agreement (including, without limitation, Sections 4 and 5), Executive agrees that during the Term (including any extensions thereof) and during the Covered Time Executive shall not, directly or indirectly, (i) solicit or attempt to induce any of the employees, agents, consultants or representatives of the Company to terminate his, her, or its relationship with the Company; (ii) solicit or attempt to induce any of the employees, agents, consultants or representatives of the Company to become employees, agents, consultants or representatives of any other person or entity; (iii) solicit or attempt to induce any customer, vendor or distributor of the Company to curtail or cancel any business with the Company; or (iv) hire any person who, to Executive’s actual knowledge, is, or was within 180 days prior to such hiring, an employee of the Company.
(c) During the Term (including any extensions thereof) and during the Covered Time, Executive agrees that upon the earlier of Executive’s (i) negotiating with any Competitor (as defined below) concerning the possible employment of Executive by the Competitor, (ii) responding to (other than for the purpose of declining) an offer of employment from a Competitor, or (iii) becoming employed by a Competitor, (x) Executive will provide copies of Section 6 of this Agreement to the Competitor, and (y) in the case of any circumstance described in (iii) above occurring during the Covered Time, and in the case of any circumstance described in (i) or (ii) above occurring during the Term or during the Covered Time, Executive will promptly provide notice to the Company of such circumstances. Executive further agrees that the Company may provide notice to a Competitor of Executive’s obligations under this Agreementcompany. For purposes of this Agreement, “CompetitorCompeting Business” shall mean (i) any entity business in which the Company is currently engaged, including, but not limited to, renting and selling equipment and merchandise to the commercial and general public, including construction equipment, earthmoving equipment, aerial equipment, aerial work platforms, traffic safety equipment, trench safety equipment, industrial equipment, landscaping equipment, and home repair and maintenance equipment, as well as highway construction related technologies and the buying of companies that engage in such activities along with the computer hardware and software systems designed, developed and utilized with respect to any of the foregoing; (ii) any other than business which the Company engages in during Executive’s employment with the Company; and (iii) that engagesany of the entities identified on Exhibit A. For purposes of this Agreement, directly or indirectly, “Restricted Area” means each of: (i) any state in the United States and any province in Canada in which the Company conducts any Competing Businessbusiness currently or during Executive’s employment with the Company, it being agreed that each state and province is one unitary market for purposes of the Company’s business; and (ii) regardless of state, the area within a 200 mile radius of any office or facility of the Company in which or in relation to which Executive shall have performed any duties for the Company during his employment with the Company.
Appears in 1 contract
Samples: Employment Agreement (United Rentals North America Inc)
Noncompetition; Nonsolicitation. (a) Executive acknowledges and recognizes the highly competitive nature of the Company’s business and that access to the Company’s confidential records and proprietary information renders Executive him special and unique within the Company’s industry. In consideration of the payment by the Company to Executive of amounts that may hereafter be paid to Executive pursuant to this Agreement (including, without limitation, pursuant to Sections 3 and 4 hereof) and 5)other obligations undertaken by the Company hereunder, Executive agrees that during (i) his employment with the Term Company, and (including any extensions thereofii) the period beginning on the date of termination of employment and during ending two years after the date of termination of employment (the “Covered Time (as defined in Section 6.1(e)Time”), Executive, alone or with others, will Executive shall not, directly or indirectly, engage (as owner, investor, partner, stockholder, employer, employee, consultant, advisor, director or otherwise) in any Competing Business. For purposes Business in any Restricted Area (each as defined below), provided that the provisions of this Section 6, “Competing Business” shall mean any business (i5.2(a) involving design and production of instant lottery tickets and the management of related marketing and distribution programs; manufacture, sale, operation or management of on-line lottery systems (Lotto-type games); involving development and commercialization of licensed and other proprietary game entertainment for all lottery product channels; involving provision of wagering (whether pari-mutuel (pooled) or otherwise) or venue management services for racetracks and off-track betting facilities; production of prepaid cellular phone cards; or any other business in which the Company is then or was within the previous twenty-four months engaged or in which the Company, to Executive’s actual knowledge, intends to engage during the Term or the Covered Time; and (ii) which Competing Business is conducted or planned to will not be conducted anywhere in the United States or in any other geographic area in which such business was conducted or planned to be conducted by the Company; provided, further, that this Section 6.1(a) shall not restrict deemed breached merely because Executive from engaging in (and the term “Competing Business” shall not include) any business in which the Company no longer engages or plans to engage; and provided further that activities owns less than 5% of the Company, or activities engaged in by Executive for or on behalf outstanding common stock of the Company, are not restricted by this Section 6.1.(a) and shall not constitute a “Competing Business.” Ownership of (i) the securities of any entity for which a Competing Business represents less than 10% of net sales or net income (as determined in accordance with generally accepted accounting principles) for the most recent fiscal year (or if such entity has not completed a fiscal year, net sales or net income projected for its first fiscal year) or (ii) not more than two percent of the equity securities of any company having securities listed on an exchange or regularly publicly-traded in the over-the-counter market shall not, of itself, be deemed inconsistent with this Section 6.1(a). Nothing herein shall require Executive to sell or otherwise dispose of any securities of any entity if the acquisition of such securities did not violate the terms of this Section 6.1(a) at the time of such acquisition.
(b) In further consideration of the amounts that may hereafter be paid to Executive pursuant to this Agreement (including, without limitation, Sections 4 and 5), Executive agrees that during the Term (including any extensions thereof) and during the Covered Time Executive shall not, directly or indirectly, (i) solicit or attempt to induce any of the employees, agents, consultants or representatives of the Company to terminate his, her, or its relationship with the Company; (ii) solicit or attempt to induce any of the employees, agents, consultants or representatives of the Company to become employees, agents, consultants or representatives of any other person or entity; (iii) solicit or attempt to induce any customer, vendor or distributor of the Company to curtail or cancel any business with the Company; or (iv) hire any person who, to Executive’s actual knowledge, is, or was within 180 days prior to such hiring, an employee of the Company.
(c) During the Term (including any extensions thereof) and during the Covered Time, Executive agrees that upon the earlier of Executive’s (i) negotiating with any Competitor (as defined below) concerning the possible employment of Executive by the Competitor, (ii) responding to (other than for the purpose of declining) an offer of employment from a Competitor, or (iii) becoming employed by a Competitor, (x) Executive will provide copies of Section 6 of this Agreement to the Competitor, and (y) in the case of any circumstance described in (iii) above occurring during the Covered Time, and in the case of any circumstance described in (i) or (ii) above occurring during the Term or during the Covered Time, Executive will promptly provide notice to the Company of such circumstances. Executive further agrees that the Company may provide notice to a Competitor of Executive’s obligations under this Agreementcompany. For purposes of this Agreement, “CompetitorCompeting Business” shall mean (i) any entity business in which the Company is currently engaged, including, but not limited to, renting and selling equipment and merchandise to the commercial and general public, including construction equipment, earthmoving equipment, aerial equipment, aerial work platforms, traffic safety equipment, trench safety equipment, industrial equipment, landscaping equipment, and home repair and maintenance equipment, as well as highway construction related technologies and the buying of companies that engage in such activities along with the computer hardware and software systems designed, developed and utilized with respect to any of the foregoing; (ii) any other than future business which the Company engages in during Executive’s employment with the Company; and (iii) that engagesany of the entities identified on Exhibit C. For purposes of this Agreement, directly or indirectly, “Restricted Area” means each of: (i) any state in the United States and any province in Canada in which the Company conducts any Competing Businessbusiness currently or during Executive’s future employment with the Company; and (ii) regardless of state, the area within a 200 mile radius of any office or facility of the Company in which or in relation to which Executive shall have performed any duties for the Company during his employment with the Company.
Appears in 1 contract
Noncompetition; Nonsolicitation. (a) Executive acknowledges and recognizes the highly competitive nature of the Company’s business and that access to the Company’s confidential records and proprietary information renders Executive him special and unique within the Company’s industry. In consideration of the payment by the Company to Executive of amounts that may hereafter be paid to Executive pursuant to this Agreement (including, without limitation, pursuant to Sections 4 3 and 5)5 hereof) and other obligations undertaken by the Company hereunder, Executive agrees that during (i) his employment with the Term Company and (including ii) the period beginning on the date of termination of employment for any extensions thereof) reason and during ending one year after the Covered Time date of termination of employment (as defined in Section 6.1(e)the “Post-Employment Period”), Executive, alone or with others, will Executive shall not, directly or indirectly, engage (as owner, investor, partner, stockholder, employer, employee, consultant, advisor, director or otherwise) in any Competing Business, provided that the provisions of this Section 6.2(a) will not be deemed breached merely because Executive owns less than 1% of the outstanding common stock of a publicly-traded company. For purposes of this Section 6Agreement, “Competing Business” shall mean any business (i) involving design and production of instant lottery tickets and the management of related marketing and distribution programs; manufacture, sale, operation or management of on-line lottery systems (Lotto-type games); involving development and commercialization of licensed and other proprietary game entertainment for all lottery product channels; involving provision of wagering (whether pari-mutuel (pooled) or otherwise) or venue management services for racetracks and off-track betting facilities; production of prepaid cellular phone cards; or any other business in which the Company is then or was within the previous twenty-four months engaged or in which the Company, to Executive’s actual knowledge, intends to engage during the Term or the Covered Time; and (ii) which Competing Business is conducted or planned to be conducted anywhere in the United States or in any other geographic area in which such business was conducted or planned to be conducted by the Company; provided, further, that this Section 6.1(a) shall not restrict Executive from engaging in (and the term “Competing Business” shall not include) any business in which the Company no longer engages or plans is currently engaged anywhere in the world, including but not limited to engage(A) the development of medical equipment in the hemodiafiltration realm for use in ESRD chronic therapy, and (B) the development of cold water purification systems; and (ii) any other business which the Company engages in anywhere in the world during Executive’s employment with the Company, provided further that activities that, solely for purposes of this clause (ii), such business represents more than 5% of the Company, or activities engaged in by Executive for or on behalf of the Company, are not restricted by this Section 6.1.(a) and shall not constitute a “Competing Business.” Ownership of (i) the securities of any entity for which a Competing Business represents less than 10% of ’s net sales or net income (as determined in accordance with generally accepted accounting principles) for the most recent fiscal year (or if such entity has not completed a fiscal year, net sales or net income projected for its first fiscal year) or (ii) not more than two percent of the equity securities of any company having securities listed on an exchange or regularly traded in the overpreceding twelve-the-counter market shall not, of itself, be deemed inconsistent with this Section 6.1(a). Nothing herein shall require Executive to sell or otherwise dispose of any securities of any entity if the acquisition of such securities did not violate the terms of this Section 6.1(a) at the time of such acquisitionmonth period.
(b) In further consideration of the payment by the Company to Executive of amounts that may hereafter be paid to Executive pursuant to this Agreement (including, without limitation, pursuant to Sections 4 3 and 5)5 hereof) and other obligations undertaken by the Company hereunder, Executive agrees that during his employment and the Term (including any extensions thereof) and during the Covered Time Executive Post-Employment Period, he shall not, directly or indirectly, (i) solicit solicit, encourage or attempt to induce solicit or encourage any of the employees, agents, consultants or representatives of the Company or any of its affiliates to terminate his, her, or its relationship with the CompanyCompany or such affiliate; (ii) solicit solicit, encourage or attempt to induce solicit or encourage any of the employees, agents, consultants or representatives employees of the Company or any of its affiliates to become employees, agents, employees or consultants or representatives of any other person or entity; (iii) solicit solicit, encourage or attempt to induce solicit or encourage any customer, vendor or distributor of the consultants of the Company or any of its affiliates to curtail become employees or cancel consultants of any business with other person or entity, provided that the Company; or (iv) hire any person who, to Executive’s actual knowledge, is, or was within 180 days prior to such hiring, an employee of the Company.
(c) During the Term (including any extensions thereof) and during the Covered Time, Executive agrees that upon the earlier of Executive’s (i) negotiating with any Competitor (as defined below) concerning the possible employment of Executive by the Competitor, (ii) responding to (other than for the purpose of declining) an offer of employment from a Competitor, or restriction in this clause (iii) becoming employed by shall not apply if (A) such solicitation, encouragement or attempt to solicit or encourage is in connection with a Competitor, (x) Executive will provide copies of Section 6 of this Agreement to the Competitor, and (y) in the case of any circumstance described in (iii) above occurring during the Covered Time, and in the case of any circumstance described in (i) or (ii) above occurring during the Term or during the Covered Time, Executive will promptly provide notice to the Company of such circumstances. Executive further agrees that the Company may provide notice to business which is not a Competitor of Executive’s obligations under this Agreement. For purposes of this Agreement, “Competitor” shall mean any entity (other than the Company) that engages, directly or indirectly, in the United States in any Competing Business.Business and
Appears in 1 contract
Samples: Employment Agreement (Nephros Inc)
Noncompetition; Nonsolicitation. (a) Executive The Grantee acknowledges and recognizes the highly competitive nature of the Company’s business and that access to the Company’s confidential records and proprietary information renders Executive special and unique within the Company’s industry. In consideration businesses of the amounts that may hereafter be paid to Executive pursuant to this Agreement Company and its Subsidiaries and Affiliates and accordingly agrees as follows:
(includingi) During the period of Grantee’s employment with the Company and, without limitationif applicable, Sections 4 and 5), Executive agrees that during the Term (including any extensions thereof) and during the Covered Time “Noncompete Period” (as defined in Section 6.1(e)8(c) below), Executivethe Grantee will not directly or indirectly, alone (1) engage in any “Competitive Business” (as defined in Section 8(c) below) for the Grantee’s own account, (2) enter the employ of, or render any services to, any person or entity engaged in any Competitive Business, (3) acquire a financial interest in, or otherwise become actively involved with, any person or entity engaged in any Competitive Business, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant, or (4) interfere with othersbusiness relationships (whether formed before or after the Grant Date) between the Company and customers or suppliers of, or consultants to, the Company. For purposes of this Section 8, the Company shall be construed to include the Company and its Subsidiaries and controlled Affiliates.
(ii) Notwithstanding anything to the contrary in the Agreement, the Grantee may, directly or indirectly own, solely as an investment: (A) securities of any person engaged in the business of the Company which are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Grantee (1) is not a controlling person of, or a member of a group which controls, such person and (2) does not, directly or indirectly, own 3% or more of any class of securities of such person; (B) certain passive investments in real estate opportunity funds that have been separately disclosed to the Board in writing as of the date hereof; and (C) passive investments in investment funds, the primary investment purpose of which is other than investing in gaming facilities or “Destination Resorts” (as defined below).
(iii) During the “Nonsolicitation Period” (as defined in Section 8(c) below), the Grantee will not, directly or indirectly, engage (as ownersolicit, investoror directly or indirectly hire, partner, stockholder, employer, employee, consultant, advisor, director any person who is an employee of or otherwise) in any Competing Business. For purposes of this Section 6, “Competing Business” shall mean any business (i) involving design and production of instant lottery tickets and the management of related marketing and distribution programs; manufacture, sale, operation or management of on-line lottery systems (Lotto-type games); involving development and commercialization of licensed and other proprietary game entertainment for all lottery product channels; involving provision of wagering (whether pari-mutuel (pooled) or otherwise) or venue management services for racetracks and off-track betting facilities; production of prepaid cellular phone cards; or any other business in which exclusive consultant then under contract with the Company is then or who was an employee of or exclusive consultant under contract with the Company within the previous twenty-four months engaged six month period immediately preceding such employee’s or in which consultant’s termination without the Company’s written consent. Furthermore, to Executive’s actual knowledge, intends to engage during the Term or Nonsolicitation Period the Covered Time; and (ii) which Competing Business is conducted or planned to be conducted anywhere in the United States or in any other geographic area in which such business was conducted or planned to be conducted by the Company; provided, further, that this Section 6.1(a) shall not restrict Executive from engaging in (and the term “Competing Business” shall not include) any business in which the Company no longer engages or plans to engage; and provided further that activities of the Company, or activities engaged in by Executive for or on behalf of the Company, are not restricted by this Section 6.1.(a) and shall not constitute a “Competing Business.” Ownership of (i) the securities of any entity for which a Competing Business represents less than 10% of net sales or net income (as determined in accordance with generally accepted accounting principles) for the most recent fiscal year (or if such entity has not completed a fiscal year, net sales or net income projected for its first fiscal year) or (ii) not more than two percent of the equity securities of any company having securities listed on an exchange or regularly traded in the over-the-counter market shall not, of itself, be deemed inconsistent with this Section 6.1(a). Nothing herein shall require Executive to sell or otherwise dispose of any securities of any entity if the acquisition of such securities did not violate the terms of this Section 6.1(a) at the time of such acquisition.
(b) In further consideration of the amounts that may hereafter be paid to Executive pursuant to this Agreement (including, without limitation, Sections 4 and 5), Executive agrees that during the Term (including any extensions thereof) and during the Covered Time Executive shall Grantee will not, directly or indirectly, (i) solicit or attempt encourage to induce any of the employees, agents, consultants or representatives of cease to work with the Company to terminate his, her, or its relationship with the Company; (ii) solicit or attempt to induce any of the employees, agents, consultants or representatives of the Company to become employees, agents, consultants or representatives of any other person or entity; (iii) solicit or attempt to induce any customer, vendor or distributor of the Company to curtail or cancel any business with the Company; or (iv) hire any person who, to Executive’s actual knowledge, is, or was within 180 days prior to such hiring, who is an employee of or consultant under contract with the Company (whether or not exclusive) without the Company’s written consent.
(c) During the Term (including any extensions thereof) and during the Covered Time, Executive agrees that upon the earlier of Executive’s (i) negotiating with any Competitor (as defined below) concerning the possible employment of Executive by the Competitor, (ii) responding to (other than for the purpose of declining) an offer of employment from a Competitor, or (iii) becoming employed by a Competitor, (x) Executive will provide copies of Section 6 of this Agreement to the Competitor, and (y) in the case of any circumstance described in (iii) above occurring during the Covered Time, and in the case of any circumstance described in (i) or (ii) above occurring during the Term or during the Covered Time, Executive will promptly provide notice to the Company of such circumstances. Executive further agrees that the Company may provide notice to a Competitor of Executive’s obligations under this Agreement. For purposes of this Agreement, “Competitor” shall mean any entity (other than the Company) that engages, directly or indirectly, in the United States in any Competing Business.
Appears in 1 contract
Samples: Restricted Stock Agreement (Kerzner International LTD)
Noncompetition; Nonsolicitation. (a) Executive acknowledges the highly competitive nature of the Company’s business and that access to the Company’s confidential records and proprietary information renders Executive special and unique within the Company’s industry. In consideration of the amounts that may hereafter be paid to Executive pursuant to this Agreement (including, without limitation, Sections 4 3 and 54), Executive agrees that during the Term (including any extensions thereof) and during the Covered Time (as defined in Section 6.1(e5.1(e)), Executive, alone or with others, will not, directly or indirectly, engage (as owner, investor, partner, stockholder, employer, employee, consultant, advisor, director or otherwise) in any Competing Business. For purposes of this Section 65, “Competing Business” shall mean any business (i) involving design and production of instant lottery tickets and the management of related marketing and distribution programs; manufacture, sale, operation or management of on-line lottery systems (Lotto-type games); involving development and commercialization of licensed and other proprietary game entertainment for all lottery product channels; involving provision of wagering (whether pari-mutuel (pooled) or otherwise) or venue management services for racetracks and off-track betting facilities; production of prepaid cellular phone cards; or any other business in which the Company is then or was within the previous twenty-four months engaged or in which the Company, to Executive’s actual knowledge, intends to engage during the Term or the Covered Time; and (ii) which Competing Business is conducted or planned to be conducted anywhere in the United States or in any other geographic area in which such business was conducted or planned to be conducted by the Company; provided, further, that this Section 6.1(a5.1(a) shall not restrict Executive from engaging in (and the term “Competing Business” shall not include) any business in which the Company no longer engages or plans to engage; and provided further that activities of the Company, or activities engaged in by Executive for or on behalf of the Company, are not restricted by this Section 6.1.(a5.1(a) and shall not constitute a “Competing Business.” Ownership of (i) the securities of any entity for which a Competing Business represents less than 10% of net sales or net income (as determined in accordance with generally accepted accounting principles) for the most recent fiscal year (or if such entity has not completed a fiscal year, net sales or net income projected for its first fiscal year) or (ii) not more than two percent of the equity securities of any company having securities listed on an exchange or regularly traded in the over-the-counter market shall not, of itself, be deemed inconsistent with this Section 6.1(a5.1(a). Nothing herein shall require Executive to sell or otherwise dispose of any securities of any entity if the acquisition of such securities did not violate the terms of this Section 6.1(a5.1(a) at the time of such acquisition.
(b) In further consideration of the amounts that may hereafter be paid to Executive pursuant to this Agreement (including, without limitation, Sections 4 3 and 54), Executive agrees that during the Term (including any extensions thereof) and during the Covered Time Executive shall not, directly or indirectly, (i) solicit or attempt to induce any of the employees, agents, consultants or representatives of the Company to terminate his, her, or its relationship with the Company; (ii) solicit or attempt to induce any of the employees, agents, consultants or representatives of the Company to become employees, agents, consultants or representatives of any other person or entity; (iii) solicit or attempt to induce any customer, vendor or distributor of the Company to curtail or cancel any business with the Company; or (iv) hire any person who, to Executive’s actual knowledge, is, or was within 180 days prior to such hiring, an employee of the Company.
(c) During the Term (including any extensions thereof) and during the Covered Time, Executive agrees that upon the earlier of Executive’s (i) negotiating with any Competitor (as defined below) concerning the possible employment of Executive by the Competitor, (ii) responding to (other than for the purpose of declining) an offer of employment from a Competitor, or (iii) becoming employed by a Competitor, (x) Executive will provide copies of Section 6 of this Agreement 5 to the Competitor, and (y) in the case of any circumstance described in (iii) above occurring during the Covered Time, and in the case of any circumstance described in (i) or (ii) above occurring during the Term or during the Covered Time, Executive will promptly provide notice to the Company of such circumstances. Executive further agrees that the Company may provide notice to a Competitor of Executive’s obligations under this Agreement. For purposes of this Agreement, “Competitor” shall mean any entity (other than the Company) that engages, directly or indirectly, in the United States in any Competing Business.
Appears in 1 contract
Noncompetition; Nonsolicitation. (ai) Executive Employee acknowledges and recognizes the highly competitive nature of natureof the Company’s business and that Employee’s knowledge, experience and expertise, his position with the Company and access to and use of the Company’s confidential Company’sconfidential records and proprietary information renders Executive Employee special and unique within the Company’s industryunique. In consideration of the amounts that may hereafter be hereafterbe paid to Executive Employee pursuant to this Agreement (including, without limitation, Sections 4 and 5including pursuant to Paragraph 3 hereof), Executive Employee agrees that during the Term (including any extensions thereof) and during the Covered Time Term (as defined in Section 6.1(e)below), Executive, alone or with others, will Employee shall not, directly or indirectly, engage indirectly (as ownerdefined below), investor(x) engage on his own behalf in a business that produces catalyst based emission control or remediation devices or processes(as defined below),or (y) own any interest in or engage in or perform any service for any person, firm, corporation or other entity, either as a partner, stockholder, employerowner, employee, consultant, advisoragent, officer, director or otherwiseshareholder that (A) derives substantial revenues from the production of catalyst based emission control or remediation devices or processes or (B) is a meaningful competitor of the Company in any Competing Businessthe production of catalyst based emissions control or remediation devices or processes; Notwithstanding the foregoing, in the event the Employee is terminated without cause, then in that event, Employee may engage in a related business so long as Employee is not engaged directly or indirectly in the design or production of Catalyst Based Emission Control or Remediation Devices or Processes (as defined herein). For purposes To the extent applicable, Employee will be governed by the non solicitation provisions of this Section 6, “Competing Business” shall mean any business (i) involving design and production of instant lottery tickets and the management of related marketing and distribution programs; manufacture, sale, operation or management of on-line lottery systems (Lotto-type games); involving development and commercialization of licensed and other proprietary game entertainment for all lottery product channels; involving provision of wagering (whether pari-mutuel (pooled) or otherwise) or venue management services for racetracks and off-track betting facilities; production of prepaid cellular phone cards; or any other business in which the Company Agreement even if Employee is then or was within the previous twenty-four months engaged or in which the Company, to Executive’s actual knowledge, intends permitted to engage during the Term or the Covered Time; and in a related business. 4/12
(ii) which Competing Business is conducted or planned to be conducted anywhere in the United States or in any other geographic area in which such business was conducted or planned to be conducted by the Company; provided, further, that this Section 6.1(a) shall not restrict Executive from engaging in (and the term “Competing Business” shall not include) any business in which the Company no longer engages or plans to engage; and provided further that activities of the Company, or activities engaged in by Executive for or on behalf of the Company, are not restricted by this Section 6.1.(a) and shall not constitute a “Competing Business.” Ownership of (i) the securities of any entity for which a Competing Business represents less than 10% of net sales or net income (as determined in accordance with generally accepted accounting principles) for the most recent fiscal year (or if such entity has not completed a fiscal year, net sales or net income projected for its first fiscal year) or (ii) not more than two percent of the equity securities of any company having securities listed on an exchange or regularly traded in the over-the-counter market shall not, of itself, be deemed inconsistent with this Section 6.1(a). Nothing herein shall require Executive to sell or otherwise dispose of any securities of any entity if the acquisition of such securities did not violate the terms of this Section 6.1(a) at the time of such acquisition.
(b) In further consideration of the payment by the Company to Employee of amounts that may hereafter be paid to Executive Employee pursuant to this Agreement (including, without limitation, Sections 4 and 5including pursuant to Paragraph 3 hereof), Executive Employee agrees that during the Term (including any extensions thereof) and during the Covered Time Executive shall not, directly or indirectly, (i) solicit or attempt to induce any of the employees, agents, consultants or representatives of the Company to terminate his, her, or its relationship with the Company; (ii) solicit or attempt to induce any of the employees, agents, consultants or representatives of the Company to become employees, agents, consultants or representatives of any other person or entity; (iii) solicit or attempt to induce any customer, vendor or distributor of the Company to curtail or cancel any business with the Company; or (iv) hire any person who, to Executive’s actual knowledge, is, or was within 180 days prior to such hiring, an employee of the Company.
(c) During the Term (including any extensions thereof) and during the Covered Time, Executive Employee shall not (a) directly or indirectly solicit or attempt to solicit or participate in the solicitation of or otherwise advise or encourage any employee, agent, consultant or representative of, or vendor or supplier to, the Company or any of its affiliates to terminate his, her or its relationship with the Company or any of its affiliates or to reduce the amount of business it does with the Company or any of their affiliates; or (b) directly or indirectly solicit or attempt to solicit or participate in the solicitation of or otherwise advise or encourage any employee, agent, consultant or representative of the Company or any of its affiliates to become an employee, agent, representative or consultant of or to any other individual or entity.
(iii) During the Term and during the Covered Time, Employee agrees that upon the earlier of ExecutiveEmployee’s (ix) negotiating with any Competitor (as defined below) concerning the possible employment of Executive Employee by the Competitor, (iiy) responding to (other than for the purpose of declining) receiving an offer of employment from a Competitor, or (iiiz) becoming employed by a Competitor, (x) Executive Employee will provide copies of Section 6 of this Agreement to the Competitor, and (y) in the case of any circumstance described in (iii) above occurring during the Covered Time, and in the case of any circumstance described in (i) or (ii) above occurring during the Term or during the Covered Time, Executive will promptly immediately provide notice to the Company of such circumstancescircumstances and provide copies of this Paragraph 7 to the Competitor. Executive Employee further agrees that the Company may provide notice to a Competitor of ExecutiveEmployee’s obligations under this Agreement, including, without limitation, Employee’s obligations pursuant to this Paragraph 7. For purposes of this Agreement, “Competitor” shall mean during the Term and the Covered Term, any entity (other than the Company) that then engages, directly or indirectly, in the United States in any Competing Businessproduction of emissions control or remediation devices or processes.
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Noncompetition; Nonsolicitation. (a) The Executive acknowledges that in the highly competitive nature course of his employment with the Company’s business and that access to the Company’s confidential records and proprietary information renders Executive special and unique within the Company’s industry. In consideration of the amounts that may hereafter be paid to Executive Company pursuant to this Agreement he will become familiar with trade secrets and customer lists of, and other confidential information concerning, the Company and its subsidiaries, affiliates and clients and that his services have been and will be of special, unique and extraordinary value to the Company.
(including, without limitation, Sections 4 and 5), b) The Executive agrees that during the Term Employment Period and for a period of two years thereafter (including the “Noncompetition Period”) he shall not in any extensions thereof) and during the Covered Time (as defined in Section 6.1(e)), Executive, alone or with others, will notmanner, directly or indirectly, engage (through any person, firm, corporation or enterprise, alone or as ownera member of a partnership or as an officer, investor, partnerdirector, stockholder, employerinvestor or employee of or advisor or consultant to any person, employeefirm, consultant, advisor, director corporation or enterprise or otherwise) , engage or be engaged, or assist any other person, firm, corporation or enterprise in engaging or being engaged, in any Competing BusinessCompetitive Activity. For purposes of this Section 6, “Competing Business” A Competitive Activity shall mean any a business that (i) involving design and production of instant lottery tickets and is being conducted by the management of related marketing and distribution programs; manufacture, sale, operation or management of on-line lottery systems (Lotto-type games); involving development and commercialization of licensed and other proprietary game entertainment for all lottery product channels; involving provision of wagering (whether pari-mutuel (pooled) or otherwise) or venue management services for racetracks and off-track betting facilities; production of prepaid cellular phone cards; Company or any other business subsidiary at the time in which the Company is then or was within the previous twenty-four months engaged or in which the Company, to Executive’s actual knowledge, intends to engage during the Term or the Covered Time; question and (ii) which Competing Business was being conducted at the date of the termination of the Executive’s employment, provided that Competitive Activities shall not include any business that (x) is conducted or planned to be conducted anywhere not in the United States business of distributing, managing and reproducing print and digital information for the publishing, retailing, merchandising or in any other geographic area in which such business was conducted information technology markets or planned to be conducted by the Company; provided, further, that this Section 6.1(a(y) shall not restrict Executive from engaging in (and the term “Competing Business” shall not include) any business in which the Company no longer engages or plans to engage; and provided further that activities contributes less than 5% of the Company’s revenues on a consolidated basis for the fiscal year in question. Notwithstanding anything to the contrary in this Section 6(b), or activities engaged in by Executive for or on behalf an activity shall not be deemed to be a Competitive Activity (A) solely as a result of the Company, are Executive being employed by or otherwise associated with a business of which a unit is in competition with the Company or any subsidiary but as to which unit he does not restricted have direct or indirect responsibilities for the products or product lines involved or (B) if the activity contributes less than 5% of the revenues for the fiscal year in question of the business by this Section 6.1.(awhich the Executive is employed or with which he is otherwise associated.
(c) and The Executive further agrees that during the Noncompetition Period he shall not constitute a “Competing Business.” Ownership of (i) in any manner, directly or indirectly, induce or attempt to induce any employee of or advisor or consultant to the securities Company or any of its subsidiaries or affiliates to terminate or abandon his or her or its employment or relationship for any entity for which a Competing Business represents less than 10% of net sales or net income (as determined in accordance with generally accepted accounting principles) for the most recent fiscal year (or if such entity has not completed a fiscal yearpurpose whatsoever, net sales or net income projected for its first fiscal year) or (ii) in connection with any business to which Section 6(b) applies, call on, service, solicit or otherwise do business with any customer of the Company or any of its subsidiaries or affiliates; provided, however, that the restriction contained in clause (i) of this Section 6(c) shall not apply to, or interfere with, the proper performance by the Executive of his duties pursuant to Section 2 of this Agreement.
(d) Nothing in this Section 6 shall prohibit the Executive from being (i) a stockholder in a mutual fund or a diversified investment company or (ii) a passive owner of not more than two percent of the outstanding common stock, capital stock and equity securities of any company having securities listed on an exchange firm, corporation or regularly traded enterprise so long as the Executive has no active participation in the over-the-counter market shall not, of itself, be deemed inconsistent with this Section 6.1(a). Nothing herein shall require Executive to sell or otherwise dispose of any securities of any entity if the acquisition business of such securities did not violate the terms firm, corporation or enterprise.
(e) If, at any time of enforcement of this Section 6.1(a) at 6, a court or an arbitrator holds that the time of restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum period, scope or geographical area reasonable under such acquisition.
(b) In further consideration of the amounts that may hereafter circumstances shall be paid to Executive pursuant to this Agreement (including, without limitation, Sections 4 and 5), Executive agrees that during the Term (including any extensions thereof) and during the Covered Time Executive shall not, directly or indirectly, (i) solicit or attempt to induce any of the employees, agents, consultants or representatives of the Company to terminate his, her, or its relationship with the Company; (ii) solicit or attempt to induce any of the employees, agents, consultants or representatives of the Company to become employees, agents, consultants or representatives of any other person or entity; (iii) solicit or attempt to induce any customer, vendor or distributor of the Company to curtail or cancel any business with the Company; or (iv) hire any person who, to Executive’s actual knowledge, is, or was within 180 days prior to such hiring, an employee of the Company.
(c) During the Term (including any extensions thereof) and during the Covered Time, Executive agrees that upon the earlier of Executive’s (i) negotiating with any Competitor (as defined below) concerning the possible employment of Executive by the Competitor, (ii) responding to (other than substituted for the purpose of declining) an offer of employment from a Competitorstated period, scope or (iii) becoming employed by a Competitor, (x) Executive will provide copies of Section 6 of this Agreement to the Competitor, area and (y) in the case of any circumstance described in (iii) above occurring during the Covered Time, and in the case of any circumstance described in (i) or (ii) above occurring during the Term or during the Covered Time, Executive will promptly provide notice to the Company of such circumstances. Executive further agrees that the Company may provide notice court shall be allowed to a Competitor of Executive’s obligations under this Agreement. For purposes of this Agreementrevise the restrictions contained herein to cover the maximum period, “Competitor” shall mean any entity (other than the Company) that engages, directly or indirectly, in the United States in any Competing Businessscope and area permitted by law.
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