Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants: (a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility. (b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreement. (c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised. (d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause. (e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 2 contracts
Samples: Management Services Agreement (Novamed Eyecare Inc), Management Services Agreement (Novamed Eyecare Inc)
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territoryanywhere. During the Term of this Management Services Agreement and except for the operation of the Dispensary Non-Ophthalmic Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Non- Ophthalmic Business at any a medical office, clinic or other office or health care facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereofhereof (in which event this Section 5.7 shall not apply), Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) With respect to Physician-Employees employed by Practice as of the Original Date, Practice shall obtain enforce the current written agreements with Physician Employees and Optometrists. With respect to any Physician Employees commencing employment with Practice from and after the Original Date, Practice shall enforce formal written agreements with Physician-Physician Employees and Optometrists in the form of Exhibit 5.2A, pursuant to which ------------ which the employees agree not to compete with Practice within with the Practice Territory for one (1) year after termination of the employment agreementEmployment Agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 2 contracts
Samples: Management Services Agreement (Novamed Eyecare Inc), Management Services Agreement (Novamed Eyecare Inc)
Noncompetition. Practice hereby recognizes The Executive acknowledges and agrees that in consideration and as a condition of the Executive’s employment by the Company and in exchange for, among other things, the benefits contained in this Agreement, including without limitation the opportunity to receive enhanced post-employment severance benefits, which the Executive acknowledges and agrees is fair and reasonable consideration that -------------- is independent from the continuation of the Executive’s employment, during the Restricted Period the Executive will not directly or indirectly, whether as owner, partner, shareholder, director, manager, consultant, agent, employee, co-venturer or otherwise, engage, participate or invest in any Competing Business Manager will incur substantial costs anywhere in providing the equipmentworld. For purposes hereof, support servicesthe term “Competing Business” shall mean any entity engaged in the discovery, personneldevelopment or commercialization of gene editing technology for human therapeutics. Notwithstanding the foregoing, managementnothing contained hereinabove or hereinbelow shall be deemed to prohibit the Executive from (i) acquiring, administrationsolely as an investment, and shares of capital stock (or other items and services interests) of any corporation (or other entity) not exceeding 2% of such corporation’s (or other entity’s) then outstanding shares of capital stock (or equity interest), or (ii) working for a line of business, division or unit of a larger entity that competes with the Company as long as the Executive’s activities for such line of business, division or unit do not involve work by the Executive on matters that are directly competitive with the subject matter Company’s business. Notwithstanding the foregoing, this Section 7(c) shall not be enforceable during the post-employment portion of the Restricted Period if the Executive is terminated by the Company without Cause, is laid off from employment or if the Company elects to waive the restrictions set forth in this Management Services Agreement and that in Section 7(c). If Section 7(c) is enforced during the process post-employment portion of providing services under this Management Services Agreementthe Restricted Period, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that Company shall pay the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services Executive at the Office as contemplated by this Management Services Agreement or as expressly agreed rate of 50% of the highest annualized base salary paid to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere the Executive within the Practice Territorytwo year period preceding the last day of Executive’s employment (the “Garden Leave Pay”) during the post-employment portion of the Restricted Period. During the Term Restricted Period Executive will promptly (and immediately upon request) notify the Company of any change in address and each subsequent employer or business activity including the name and address of employer or other post-Company plans and the nature of Executive’s activities. The Company’s election not to provide post-employment Garden Leave Pay shall be deemed a waiver of Executive’s post-employment noncompetition obligations under this Management Services Agreement Section 7(c). In no event will Garden Leave Pay be duplicative of other pay and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, Executive agrees that any Garden Leave Pay received pursuant to this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice Section 7(c) shall reduce (and shall not establish, operate or engage be in a Dispensary Business at addition to) any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges pay that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall Executive may be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance receive during the post-employment portion of the Management Services Agreement, such relief Restricted Period. The Executive acknowledges having been advised by the Company of the right to be without consult with counsel regarding the necessity of posting a bond, cash or otherwise. Additionally, nothing noncompetition restrictions contained in this paragraph shall limit Business Manager's right Section 7(c) prior to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceableexecuting this Agreement.
Appears in 2 contracts
Samples: Employment Agreement (CRISPR Therapeutics AG), Employment Agreement (CRISPR Therapeutics AG)
Noncompetition. Practice hereby recognizes and The Employee acknowledges that -------------- Business Manager will incur substantial costs in providing (i) the equipment, support services, personnel, management, administration, and other items and Employee performs services of a unique nature for the Company that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Managerirreplaceable, and that Business Manager the Employee’s performance of such services to a “Competitive Business” (as defined below) will result in irreparable harm to the Company, (ii) the Employee has had and will continue to have access to Confidential Information which, if disclosed, would not unfairly and inappropriately assist in competition against the Company and its affiliates, (iii) in the course of the Employee’s employment by a Competitive Business, the Employee would inevitably use or disclose such Confidential Information, (iv) the Company and its affiliates have entered into this Management Services Agreement without substantial relationships with their customers and the following covenants:
Employee has had and will continue to have access to these customers, (av) During the Term of this Management Services Agreement Employee has generated and except will continue to generate goodwill for the performance of Medical Services Company and ancillary services at its affiliates in the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation course of the Dispensary Business at Offices contemplated byEmployee’s employment, or subject to(vi) the Company has invested significant time and expense in developing the Confidential Information and goodwill, this Management Services Agreement or as expressly agreed to by Business Manager and (vii) the Company’s operations and the operations upon with the Employee works are nationwide in writingscope. Accordingly, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement Employee’s employment hereunder and for a period of five twelve (512) years from months following (x) a termination of the Employee other than for Cause (y) a termination date by the Employee for Good Reason or (z) termination of this Management Services Agreementthe Employee’s employment as a result of the Company’s non-extension of the Employment Term as provided in Section 1 hereof (each a “Qualifying Termination”), except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereofEmployee agrees that the Employee will not, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity)indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise be associated withotherwise, lend funds toand whether or not for compensation) or render services to any person, lend its name tofirm, corporation or maintain any interest whatsoever other entity, in any enterprise (i) having to do with the provisionwhatever form, distribution, promotion or advertising of any type of management or administrative services or products to third parties engaged in competition with a Competitive Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to PracticeUnited States. Notwithstanding the above restrictionforegoing, nothing herein shall prohibit Practice or any the Employee from being a passive owner of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreement.
not more than two percent (c2%) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreementequity securities of a publicly traded corporation engaged in a Competitive Business, except so long as the Employee has no active participation in the event Physician terminates business of such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice corporation. For purposes hereof, the term “Competitive Business” shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager mean any net leased real estate investment trust and the goodwill of term “Employee’s Termination” shall mean the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of date the Management Services Agreement, such relief Employee ceases to be without employed by the necessity of posting a bondCompany for whatever reason, cash whether voluntarily or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceableinvoluntarily.
Appears in 2 contracts
Samples: Employment Agreement (Spirit Realty Capital, Inc.), Employment Agreement (Spirit Realty Capital, Inc.)
Noncompetition. Practice In the event Executive breaches any provision of this Section 5(e), Executive’s entitlement to any payments payable pursuant to Section 5 of this Agreement, if and to the extent not yet paid, shall thereupon immediately cease and terminate as of the date of such breach, with Executive having the obligation to repay to the Company any payments that were paid to him during the period of the breach, provided that the non-compete covenant under this Section 5(e) remains in effect. Executive hereby recognizes acknowledges and acknowledges that -------------- Business Manager agrees that, during the course of Executive’s employment, Executive will incur substantial costs in providing the equipment, support services, personnel, management, administrationhave, and has had, access to and become familiar with various confidential and proprietary information of the Company and Affiliated Companies and/or relating to the business of the Company and Affiliated Companies (“Confidential Information”), including, but not limited to: business plans; operating results; financial statements and financial information; contracts; mailing lists; purchasing information; customer data (including lists, names and requirements); feasibility studies; personnel related information (including Executives’ skills, knowledge, capabilities, performance, compensation, compensation plans, and staffing plans); internal working documents and communications; and other items materials related to the businesses or activities of the Company and services that are Affiliated Companies which is made available only to Executives with a need to know or which is not generally made available to the subject matter of this Management Services Agreement and public. Failure to xxxx any Confidential Information as confidential, proprietary or protected information shall not affect its status as Confidential Information. Executive further acknowledges that in the process course of providing employment with the Company, Executive has and will become familiar with and involved in all aspects of the business and operations of the Company and Affiliated Companies, as well as with confidential information of or about third parties having business dealings with the Company and Affiliated Companies, including without limitation customers and prospective customers, suppliers, business partners and affiliates of the Company. Executive further acknowledges that Executive’s services under this Management Services Agreement, Practice will be privy to financial have been and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services shall continue to be provided by Business Manager will be feasible only if Practice operates an active practice of special, unique and extraordinary value to which Physicians associated with Practice devote their full professional time and attentionthe Company. Practice agrees and acknowledges that the noncompetition Therefore Executive hereby covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that upon termination of employment during the Term of this Management Services Agreement Employment Period and for a period of five (5) years from until the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of employment (the “Restricted Period”), without the express written consent of the the Chief Executive of the Company (“CEO”) (or, for the CEO, the Board): Executive will not (except for services performed for or on behalf of the Company or Affiliated Companies), directly or indirectly, in any capacity (whether as a proprietor, owner, agent, officer, director, shareholder, organizer, partner, principal, manager, member, employee, contractor, consultant or otherwise) engage in employment agreementor provide services to any person or entity that, except within the Restricted Territory, provides or provided products or services in the event Physician terminates business of armored vehicle transportation, secure international transportation of valuables, coin processing services, currency processing services, cash management services, safe and safe control services, payment services, security and guarding services, deposit processing services/daily overnight credit, check imaging, or jewel or precious metal vaulting, that are the same as or substantially similar to, and competitive with, the products or services provided by the Company or Affiliated Companies at the time of or at any time during the twenty-four (24) months prior to the cessation of Executive’s employment, in return for remuneration or a right to remuneration of any kind, including but not limited to current or deferred compensation, wages, salary, fees, benefits, tangible or intangible property or ownership rights or interests or other property rights, whether paid or conveyed to Executive or promised in the future by any person, business or other entity as a result of, or in exchange for, any work or services performed, or any intellectual property conveyed by Executive. The Restricted Territory shall consist of those states or countries (i) in which Executive was physically located at the time Executive provided services in furtherance of the business interests of the Company, (ii) for which Exexutive had supervisory responsibility (in whole or in part), if any, on behalf of the Company, or (iii) to which Executive was assigned by the Company; provided, however, that in all cases the Restricted Territory shall be limited to those states or countries where Executive provided such agreement for Physician Cause services or certain buyout rights are exercised.
had such responsibility or assignment within twenty-four (d24) Practice months prior to the cessation of Executive’s employment; provided, further, that the “Restricted Territory” shall obtain not include any state or country where the Company either does not provide or has ceased providing products and enforce formal services. Notwithstanding any provision hereof to the contrary, this Section 5(e) does not restrict Executive’s right to (i) provide services without remuneration to a not-for-profit entity; or (ii) own securities of any Entity that files periodic reports with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, provided that Executive’s total ownership constitutes less than two percent (2%) of the outstanding securities of such company and such acquisition does not violate: (A) the Company’s code of ethics or any other policy of the Company, including any policy related to inside information; (B) any applicable securities law; or (C) any applicable standstill or other similar contractual obligation of the Company. Notwithstanding the foregoing, the restrictions set forth in Section 5(e) shall not apply to Executive’s post-termination employment or activities if (1) Executive requests a waiver and receives the prior express written agreements with Physician-Employees and Optometrists informed consent of the Board or the CEO, subject to such limitations and restrictions as the Chairman of the Board or CEO may impose in his or her sole discretion, or (2) if Executive executes a waiver, in the form attached hereto as Exhibit A (the “Waiver”), of Exhibit 5.2A, all rights to receive payments of compensation pursuant to ------------ which this Agreement and delivers such signed Waiver within 10 days following the employees agree not to compete with Practice within the Practice Territory for one (1) year after Executive’s termination of employment. Such Waiver shall not, however, extinguish, avoid or in any way limit Executive’s other obligations under the Agreement. Except as to employment agreementpermitted in this Section 5(e), except before Executive accepts employment with any other person or entity while any restriction under Section 5(e) is in effect, Executive will provide the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that prospective employer with written notice of the provisions in of Section 5.6 hereof 5(e) only (and this Section 5.7 are designed to preserve not the goodwill of Business Manager full Agreement) and the goodwill will deliver a copy of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition notice to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceableCompany.
Appears in 2 contracts
Samples: Change in Control Agreement (Brinks Co), Change in Control Agreement (Brinks Co)
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that [Bracketed language is not included in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. Company’s CEO’s award agreement.] The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and Participant agrees that during the Term period of this Management Services Agreement the Participant’s employment with the Company and for a period of five (5) years from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after period immediately following the termination of such employment for any reason or for no reason, the employment agreementParticipant shall not directly or indirectly, except either as a principal, agent, employee, employer, consultant, partner, shareholder of a closely held corporation or shareholder in excess of five percent of a publicly traded corporation, corporate officer or director, or in any other individual or representative capacity, engage or otherwise participate in any manner or fashion in any business that is a Competing Business in the event Physician terminates such agreement Area (each as defined herein). The Participant further covenants and agrees that this restrictive covenant is reasonable as to duration, terms and geographical area and that the same protects the legitimate interests of the Company and its affiliates, imposes no undue hardship on the Participant, is not injurious to the public, and that any violation of this restrictive covenant shall be specifically enforceable in any court with jurisdiction upon short notice. Solely for Physician Cause purposes of this paragraph: “Area” means a 15-mile radius of any senior living facility owned, managed or certain buyout rights are exercised.
operated by the Company (dor its successor) Practice shall obtain at the time Participant’s employment is terminated; and enforce formal written agreements with Physician-Employees and Optometrists “Competing Business” means the business of owning, operating or managing senior living facilities having gross annualized revenues of at least $35 million or owning, operating or managing, in the form of Exhibit 5.2Aaggregate, pursuant to ------------ which the employees agree not to compete with Practice at least 1,000 units/beds provided that at least 750 units/beds owned, operated or managed by such business are located within the Practice Territory Area. [Notwithstanding the foregoing, (i) if the Participant’s employment is terminated by the Participant for one Good Reason (1) year after termination of the employment agreement, except as defined in the event Physician terminates such agreement for Physician Cause.
(eBrookdale Senior Living Inc. Amended and Restated Tier I Severance Pay Policy) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches at any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activitytime, the covenant in this Section 15(a) shall not apply; and (ii) the covenant in this Section 15(a) shall not be reformed interpreted to comply with such time period, geographic area or restricted activity that would be held enforceablerestrict the Participant’s right to practice law in violation of any rules of professional conduct applicable to the Participant.]
Appears in 2 contracts
Samples: Restricted Share Agreement (Brookdale Senior Living Inc.), Restricted Share Agreement (Brookdale Senior Living Inc.)
Noncompetition. Practice hereby recognizes and The Employee acknowledges that -------------- Business Manager will incur substantial costs in providing (i) the equipment, support services, personnel, management, administration, and other items and Employee performs services of a unique nature for the Company that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Managerirreplaceable, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term Employee’s performance of such services in violation of this Management Services Agreement provision to a competing business will result in irreparable harm to the Company, (ii) the Employee has had and except will continue to have access to Confidential Information which, if disclosed, would unfairly and inappropriately assist in competition against the Company or any of its affiliates, (iii) the Company and its affiliates have substantial relationships with their customers and the Employee has had and will continue to have access to these customers, and (iv) the Employee has generated and will continue to generate goodwill for the performance of Medical Services Company and ancillary services at its affiliates in the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation course of the Dispensary Business at Offices contemplated byEmployee’s employment Accordingly, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement Employee’s employment hereunder and for a period of five six (56) years from months thereafter (the termination date of this Management Services Agreement“Noncompete Period”), except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereofEmployee agrees that the Employee will not, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity)indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise be associated withotherwise, lend funds toand whether or not for compensation) or render services to any person, lend its name tofirm, corporation or maintain any interest whatsoever other entity, in any enterprise (i) having to do with the provisionwhatever form, distribution, promotion or advertising of any type of management or administrative services or products to third parties engaged in competition with Business Manager; and/or (ii) offering the Company or any type of service its subsidiaries or product affiliates or in any other material business in which the Practice Territory Company or any of its subsidiaries or affiliates is engaged on the date of termination or in which they have planned, on or prior to third parties similar such date, to those offered by Business Manager be engaged in on or after such date, in any locale of any country in which the Company conducts business or otherwise engage in conduct that interferes or conflicts with the Employee’s duties to Practicethe Company or creates a potential business or fiduciary conflict. Notwithstanding the above restrictionforegoing, nothing herein shall prohibit Practice the Employee from being a passive owner of not more than three percent (3%) of the equity securities or public debt of a publicly traded corporation engaged in a business that is in competition with the Company or any of its holders from providing management and administrative services to its subsidiaries or their own medical practices after affiliates or through a private equity, venture capital or other commingled fund, so long as the termination Employee has no active participation in the business of such corporation. In addition, the provisions of this Management Services AgreementSection 8(b) shall not be violated by the Employee commencing employment with a subsidiary, division or unit of any entity that engages in a business in competition with the Company or any of its subsidiaries or affiliates so long as the Employee and such subsidiary, division or unit does not engage in a business in competition with the Company or any of its subsidiaries or affiliates.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 2 contracts
Samples: Employment Agreement (Thryv Holdings, Inc.), Employment Agreement (Thryv Holdings, Inc.)
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and Promisor agrees that during the Term of this Management Services Agreement and for a period of five three (53) years from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice Promisor shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise not:
(i) having Call upon, solicit, divert, take away or attempt to do call upon, solicit, divert or take away any past, existing or potential customers, suppliers, businesses, or accounts of (a) the Company or (b) the Business in connection with any business substantially similar to the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties Business in competition with Business Manager; and/or the Territory;
(ii) offering Hire, attempt to hire, contact or solicit with respect to hiring for Promisor or on behalf of any type other person any present or future employee of service the Company or product Buyer in the Practice Territory Business;
(iii) Engage in, or give any advice to third parties any person, firm, partnership, association, venture, corporation or other entity engaged in, a business substantially similar to those offered by the Business Manager in the Territory;
(iv) Lend credit, money or reputation for the purpose of establishing or operating a business substantially similar to Practice. Notwithstanding the above restrictionBusiness in the Territory;
(v) Do any act that Promisor knew or reasonably should have known might injure the Company or Buyer; and
(vi) Without limiting the generality of the foregoing provisions, nothing herein shall prohibit Practice conduct a business substantially similar to the Business, whether or not under the name "GigaPixel" or any other trade names, trademarks or service marks used by the Company or Buyer in the Territory. The covenants in subsections (i) through (vi) are intended to restrict Promisor from competing in any manner with the Company or the Business in the activities that have heretofore been carried on by the Company. The obligations set forth in subsections (i) through (vi) above shall apply to actions by Promisor, through any form of its holders ownership, and whether as principal, officer, director, agent, employee, employer, consultant, shareholder or holder of any equity security (beneficially or as trustee of any trust), lender, partner, joint venturer or in any other individual or representative or affiliated capacity whatsoever. However, none of the foregoing shall prevent Promisor from providing management and administrative services being the holder of up to its 5.0% in the aggregate of any class of securities of any corporation engaged in, directly or their own medical practices after indirectly, the termination of this Management Services Agreement.
(c) The written Employment Agreements activities described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one subsections (1i) year after termination of the employment agreementthrough (vi) above, except in the event Physician terminates provided that such agreement for Physician Cause securities are listed on a national securities exchange or certain buyout rights are exercisedreported on Nasdaq.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 2 contracts
Samples: Noncompetition Agreement (3dfx Interactive Inc), Noncompetition Agreement (3dfx Interactive Inc)
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services Ancillary Services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement and for a period of five one (51) years year from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own through a Competing Business (as defined in the Stock Purchase Agreement) (excluding ownership of less five percent (5%) of the equity of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreementEmployment Agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
(f) Notwithstanding anything to the contrary contained herein, Practice shall not be bound by the restrictions set forth in this Section 5.7 in the event an Event of Default (as defined in the Subordinated Exchangeable Promissory Note issued by NovaMed to Practice in connection with the Stock Purchase Agreement) occurs and is continuing uncured for a period of more than thirty (30) days. Moreover, upon an Event of Default remaining uncured for a period of more than thirty (30) days, Practice shall not be responsible for pursuing, or paying to Business Manager, any Business Manager Damages in connection with any breach of an Employment Agreement arising after the date of such Event of Default.
Appears in 2 contracts
Samples: Management Services Agreement (Novamed Eyecare Inc), Management Services Agreement (Novamed Eyecare Inc)
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and Executive agrees that during the Term of this Management Services Agreement Executive’s employment with the Company and its Affiliates and the one-year period following the date on which the Executive’s employment terminates for a period of five any reason (5the “Restriction Period”), the Executive will not, without the Board’s express written consent, engage (directly or indirectly) years from the termination date of this Management Services Agreement, except in any Competitive Business in the event Practice terminates this Management Services Agreement for cause pursuant Restricted Area. The term “Competitive Business” means any activities or services conducted by any third party with respect to Section 7.2(bthe research, development, marketing, manufacturing or sale of oncolytic immunotherapies that are similar to the activities or services the Executive has performed (or gained Proprietary Information about (as defined below)) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) at any time during the last two years of the equity of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do Executive’s employment with the provisionCompany. The term “Restricted Area” means the United States of America, distributionCanada and countries within Europe, promotion or advertising in respect of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in which the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice Company or any of its holders from providing management Affiliates has material business operations as of the date on which the Executive’s employment terminates and administrative in which the Executive has provided services to or had a material presence or influence at any time during the last two years of the Executive’s employment with the Company or its Affiliates. The Executive agrees that the Base Salary provided for in Section 2(a), the Annual Bonus percentage opportunity provided for in Section 2(b), the Sign-On Bonus provided for in Section 2(c), the separation benefits provided for in Section 6 and the Change of Control Termination benefits provided for in Section 7, are fair and reasonable consideration for the Executive’s compliance with this Section 15(a). The Executive understands and agrees that, given the nature of the business of the Company and its Affiliates and the Executive’s position with the Company, the foregoing geographic scope is reasonable and appropriate, that by virtue of the Executive’s position and scope of responsibilities, the Executive has and will provide services and will have a material presence or their own medical practices after influence within the termination Restricted Area, and that more limited geographical limitations on this non-competition covenant are therefore not appropriate. For purposes of this Management Services Agreement.
(c, the term “Affiliate” means the Company’s sole shareholder, any subsidiary of the Company or other entity under common control with the Company. The Company shall not enforce this Section 15(a) The written Employment Agreements described if it terminates the Executive’s employment without Cause as defined in Section 5.1 hereof 13(a). The Executive shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief any payments under Sections 6 or 7, however, unless he executes and by specific performance of does not revoke a Release containing the Management Services AgreementRestrictive Covenants set forth in Section 15, such relief to be without the necessity of posting including a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceableone-year post-employment non-compete restriction.
Appears in 2 contracts
Samples: Employment Agreement (Replimune Group, Inc.), Employment Agreement (Replimune Group, Inc.)
Noncompetition. Practice hereby recognizes In view of the unique nature of the business of the Employer and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are need of the subject matter of this Management Services Agreement and that Employer to maintain its competitive advantage in the process of providing services under this Management Services Agreementindustry, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practicesthe Employee agrees that, to which Practice would not otherwise be exposed. The parties also recognize that during the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that Restricted Period (as defined in Section 10.2 below) the noncompetition covenants described hereunder are necessary for the protection of Business ManagerEmployee shall not, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement directly or as expressly agreed to by Business Manager in writingindirectly, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term United States of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, America or subject to, this Management Services Agreement its Territories or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate Possessions or engage in a Dispensary Business at within any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement, except country in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereofworld which the Employer has conducted or is then conducting business, Practice shall not directly or indirectly engage in, own an interest in (excluding ownership except as a holder of less no more than five percent (5%) of the equity shares of any publicly traded entitycorporation), managebe employed by, operateconsult for, controlact as an advisor to, or otherwise be in any way participate in or become associated with, lend funds toany Competitive Business (as defined in Section 10.2 below) or any corporation, lend its name partnership, limited liability company, business, enterprise, venture or other person or entity that is engaged or participates in any Competitive Business (each, a "Competitive Business Entity") unless in each case the Employee shall have given to the Board notice of the Employee's intention to be employed by, consult for, act as an advisor to, or maintain any interest whatsoever otherwise in any enterprise way participate in or become associated with, any Competitive Business or any Competitive Business Entity and the Board shall have approved the Employee's relationship with or engagement in such Competitive Business or Competitive Business Entity; provided, however, that, notwithstanding anything in the foregoing provisions of this Section 10.1 to the contrary, the Employee may be employed by, consult for, act as an advisor to, or otherwise participate in any way with, any person or entity that is engaged in any Competitive Business if, but only if, the services being rendered by the Employee to such person or entity (iwhether in the nature of employment services, consulting services or otherwise) having do not pertain or in any way relate to do such Competitive Business. During the Restricted Period, the Employee also shall not solicit, or arrange to have any other person or entity solicit, any person or entity engaged by the Employer as an employee, customer or supplier of, or consultant or advisor to, the Employer to terminate such party's relationship with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services AgreementEmployer.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 2 contracts
Samples: Employment Agreement (Glycogenesys Inc), Employment Agreement (Glycogenesys Inc)
Noncompetition. Practice hereby recognizes and The Employee acknowledges that -------------- Business Manager (i) the Employee will incur substantial costs in providing perform services of a unique nature for the equipment, support services, personnel, management, administration, and other items and services Company that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Managerirreplaceable, and that Business Manager the Employee’s performance of such services to a competing business will result in irreparable harm to the Company Group, (ii) the Employee will have access to Confidential Information which, if disclosed, would not have entered into this Management Services Agreement without unfairly and inappropriately assist in competition against the following covenants:
Company Group, and (aiii) During the Term of this Management Services Agreement and except Employee will generate goodwill for the performance of Medical Services and ancillary services at Company Group in the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation course of the Dispensary Business at Offices contemplated byEmployee’s employment. Accordingly, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement Employee’s employment hereunder and for a period of five twelve (512) years from months thereafter, the termination date of this Management Services AgreementEmployee agrees that the Employee will not, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity)indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise be associated withotherwise, lend funds toand whether or not for compensation) or render services to any person, lend its name tofirm, corporation or maintain any interest whatsoever other entity, in whatever form, engaged in substantial competition with the Company Group or in any enterprise (i) having other material business in which the Company Group is engaged on the date of termination or in which the Company Group has planned, on or prior to do with the provisionsuch date, distributionto be engaged in on or after such date, promotion or advertising in any locale of any type of management or administrative services or products to third parties country in competition with Business Manager; and/or (ii) offering any type of service or product in which the Practice Territory to third parties similar to those offered by Business Manager to PracticeCompany Group conducts business. Notwithstanding the above restrictionforegoing, nothing herein shall prohibit Practice or any the Employee from being a passive owner of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for more than one percent (1%) year after termination of the employment agreementequity securities of a publicly traded corporation engaged, except or of being a limited partner or member in an investment fund not controlled by the Employee, which fund is directly or indirectly an investor in a company that is, in competition with the Company Group, so long as the Employee has no active participation in the event Physician terminates business of such agreement for Physician Cause or certain buyout rights are exercisedcompany.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 2 contracts
Samples: Employment Agreement (TGPX Holdings I LLC), Employment Agreement (TGPX Holdings I LLC)
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facilityfacility within the Practice Territory.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreementEmployment Agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 2 contracts
Samples: Management Services Agreement (Novamed Eyecare Inc), Management Services Agreement (Novamed Eyecare Inc)
Noncompetition. Practice hereby The Employee recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that the Company will suffer irreparable harm in the event that the Employee enters into competition with the Company, either during or following the Term of this Management Services Agreement Employee’s employment with the Company. Therefore, the Employee agrees that while the Employee is employed by the Company and for a period of five (5) years from one year following the termination date or cessation of such employment (the “Restricted Period”), regardless of the reasons, the Employee shall not, directly or indirectly, alone or as a consultant, partner, officer, director, employee, joint venturer, lender or stockholder, or in any other capacity whatsoever, of any entity, (a) accept employment with any business or entity that is in competition with the products or services being conceived, designed, created, developed, manufactured, marketed, distributed or sold by the Company, provided that nothing contained in this Management Services Agreementsubsection (a) will prevent the Employee from being employed by a subsidiary, except division, affiliate or unit (each, a “Unit”) of an entity if that Unit is not engaged in any business which is in competition with the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(bproducts or services being conceived, designed, created, developed, manufactured, marketed, distributed or sold by the Company, irrespective of whether some other Unit of such entity engages in such competition; (b) hereofengage in or undertake any business operations of conceiving, Practice shall not designing, creating, developing, manufacturing, marketing, distributing selling or rendering (or assisting any other person in conceiving, designing, creating, developing, manufacturing, marketing, distributing selling or rendering) products or services that are in competition with the products or services being conceived, designed, created, developed, manufactured, marketed, distributed, sold or rendered by the Company or (c) invest in or assist in any manner any business which directly or indirectly competes with the business or future business plans of the Company, except that he may own (excluding ownership of less five up to one percent (51%) of the equity outstanding securities of any publicly corporation having a class of equity securities actively traded entity), manage, operate, control, on a national securities exchange or otherwise on the NASDAQ Stock Market. A business or entity shall be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having deemed to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties be in competition with Business Manager; and/or (ii) offering any type of service the products or product services being conceived, designed, created, developed, manufactured, marketed, distributed, sold or rendered by the Company if it is in the Practice Territory business of development, manufacture, license, sale and distribution of RNAi-based therapeutic and diagnostic products (including, but not limited to, DsiRNA technology). The geographic scope of this Section 2 shall extend to third parties similar anywhere the Company is doing business, has done business or intends to those offered by Business Manager to Practicedo business. Notwithstanding the above restriction, nothing herein shall prohibit Practice or The Employee acknowledges and agrees that if he violates any of its holders the provisions of this Section 2, the Restricted Period will be extended from providing management and administrative services to its or their own medical practices after the date of termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory employment for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition a period equal to any other remedies available under this Management Services Agreement at law or period during which he engages in equitysuch violation(s), Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance whether such period is during the pendency of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash litigation or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 2 contracts
Samples: Employment Agreement (Dicerna Pharmaceuticals Inc), Employment Agreement (Dicerna Pharmaceuticals Inc)
Noncompetition. Practice hereby recognizes and The Employee acknowledges that -------------- Business Manager will incur substantial costs in providing (i) the equipment, support services, personnel, management, administration, and other items and Employee performs services of a unique nature for the Company Group that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Managerirreplaceable, and that Business Manager the Employee’s performance of such services to a competing business will result in irreparable harm to the Company Group, (ii) the Employee has had and will continue to have access to Confidential Information which, if disclosed, would not unfairly and inappropriately assist in competition against the Company Group or any of its affiliates, (iii) in the course of the Employee’s employment by a competitor, the Employee would inevitably use or disclose such Confidential Information, (iv) the Company Group and its affiliates have entered into this Management Services Agreement without substantial relationships with their customers and the following covenants:
Employee has had and will continue to have access to these customers, (av) During the Term of this Management Services Agreement Employee has received and except will receive specialized training from the Company Group and its affiliates, and (vi) the Employee has generated and will continue to generate goodwill for the performance of Medical Services Company Group and ancillary services at its affiliates in the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation course of the Dispensary Business at Offices contemplated byEmployee’s employment. Accordingly, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement Employee’s employment hereunder and for a period of five twenty four (524) years from months thereafter, the termination date of this Management Services AgreementEmployee agrees that the Employee will not, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity)indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise be associated withotherwise, lend funds toand whether or not for compensation) or render services to any person, lend its name tofirm, corporation or maintain any interest whatsoever other entity, in any enterprise whatever form, engaged in (i) having the fast casual restaurant business in North America that derives at least twenty percent (20%) of its revenue from the sale of Mediterranean inspired items or in any other material business in which the Company Group or any of its affiliates is engaged on the date of the Employee’s termination of employment or in which they have planned, on or prior to do with the provisionsuch date, distribution, promotion to be engaged in on or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practiceafter such date. Notwithstanding the above restrictionforegoing, nothing herein shall prohibit Practice the Employee from being a passive owner of not more than one percent (1%) of the equity securities of a publicly traded corporation engaged in a business that is in competition with the Company Group or any of its holders from providing management and administrative services to its or their own medical practices after affiliates, so long as the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except Employee has no active participation in the event Physician terminates business of such agreement for Physician Cause or certain buyout rights are exercisedcorporation.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 2 contracts
Samples: Employment Agreement (Zoe's Kitchen, Inc.), Employment Agreement (Zoe's Kitchen, Inc.)
Noncompetition. Practice hereby recognizes The Executive acknowledges and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and agrees that in the process performance of providing services under this Management Services Agreement, Practice he will be privy to financial brought into frequent contact, either in person, by telephone, through electronic means or through the mails, with existing and potential customers and/or partners of the Company. The Executive also acknowledged that any Confidential Information learned by him during the Term has been developed by the Company through substantial expenditures of Business Manager time and other Regional Practices, to which Practice would not otherwise be exposedmoney and constitutes valuable and unique property of the Company. The parties also recognize Executive further understands and agrees that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary foregoing makes it necessary, for the protection of Business Managerthe Company’s business, that the Executive not compete with the Company during the Term and that Business Manager would not have entered into this Management Services Agreement without Compete with the Company for a reasonable period after the Term, as further described in the following covenantsprovisions. Accordingly, the Executive agrees that so long as he is an employee of the Company and for 12 months thereafter:
(a) During The Executive will not, directly or indirectly, individually or as a consultant to, or employee, officer, director, manager, stockholder, partner, member or other owner or participant in any business entity, other than the Term of this Management Services Agreement and except for Company or a Related Company, engage in or assist any other person or entity to engage in any business which directly or indirectly competes with any business in which the performance of Medical Services and ancillary services Company or Related Company is engaging or in which the Company or Related Company plans to engage or is actively evaluating engaging, during or at the Office as contemplated by this Management Services Agreement time of the termination of the Executive’s engagement hereunder, anywhere in the United States or as expressly agreed anywhere else in the world where the Company or any Related Company does business, or plans to by Business Manager in writing, Practice do business or is actively evaluating doing business; provided that nothing contained herein shall not establish, operate prohibit the Executive from being a passive owner of less than one percent (1%) of the outstanding stock or provide Medical Services at a medical office, clinic any class of securities of any corporation or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, entity that is publicly traded or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.privately held; and
(b) Except The Executive will not, directly or indirectly, individually or as specifically agreed a consultant to, or employee, officer, director, manager, stockholder, partner, member or other owner or participant in any business entity solicit or endeavor to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement and for a period of five (5) years entice away from the termination date of this Management Services AgreementCompany or any Related Company, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of offer employment or any publicly traded entity), manage, operate, controlconsulting arrangement to, or otherwise be associated materially interfere with the business relationship of the Company or any Related Company with, lend funds to, lend its name toany person or entity who is, or maintain any interest whatsoever in any enterprise was within the one-year period immediately prior to the termination of the Executive’s engagement hereunder, (i) having employed by or a consultant to do with the provision, distribution, promotion Company or advertising of any type of management Related Company or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service a customer or product in client of, supplier to or other party having material business relations with the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice Company or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services AgreementRelated Company.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 2 contracts
Samples: Employment Agreement (Inception Mining Inc.), Employment Agreement (Inception Mining Inc.)
Noncompetition. Practice hereby recognizes and The Executive acknowledges that -------------- Business Manager will incur substantial costs in providing (i) the equipment, support services, personnel, management, administration, and other items and Executive performs services of a unique nature for the Company that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Managerirreplaceable, and that Business Manager the Executive’s performance of such services to a competing business will result in irreparable harm to the Company, (ii) the Executive has had and will continue to have access to Confidential Information, which, if disclosed, would not unfairly and inappropriately assist in competition against the Company or any of its affiliates, (iii) in the course of the Executive’s employment by a competitor, the Executive would inevitably use or disclose such Confidential Information, (iv) the Company and its affiliates have entered into this Management Services Agreement without substantial relationships with their customers and the following covenants:
Executive has had and will continue to have access to these customers, (av) During the Term of this Management Services Agreement Executive has received and except will receive specialized training from the Company and its affiliates, and (vi) the Executive has generated and will continue to generate goodwill for the performance of Medical Services Company and ancillary services at its affiliates in the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation course of the Dispensary Business at Offices contemplated byExecutive’s employment. Accordingly, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement Executive’s employment hereunder and for a period of five twelve (512) years from months thereafter (the termination date of this Management Services Agreement“Restricted Period”), except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereofExecutive agrees that the Executive will not, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity)indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise be associated withotherwise, lend funds toand whether or not for compensation) or render services to any person, lend its name tofirm, corporation or maintain any interest whatsoever other entity, in whatever form, engaged in the business of international or domestic maritime transport of petroleum or petroleum-based products, including but not limited to crude oil and refined petroleum products (the “Business”), in each case in any enterprise (i) having to do with the provision, distribution, promotion or advertising locale of any type country (and including, for the avoidance of management doubt, shipping through international waters) in which or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type from which the Company conducts business as of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practiceend of the Employment Term. Notwithstanding the above restrictionforegoing, nothing herein shall prohibit Practice the Executive from being a passive owner of not more than one percent (1%) of the equity securities of a publicly traded corporation engaged in a business that is in competition with the Company or any of its holders from providing management and administrative services to its subsidiaries or their own medical practices after affiliates, so long as the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except Executive has no active participation in the event Physician terminates business of such agreement for Physician Cause or certain buyout rights are exercisedcorporation.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 2 contracts
Samples: Employment Agreement (Gener8 Maritime, Inc.), Employment Agreement (General Maritime Corp / MI)
Noncompetition. Practice hereby recognizes and The Executive acknowledges that -------------- Business Manager will incur substantial costs in providing (i) the equipment, support services, personnel, management, administration, and other items and Executive performs services of a unique nature for the Company that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Managerirreplaceable, and that Business Manager the Executive’s performance of such services to a competing business will result in irreparable harm to the Company, (ii) the Executive has had and will continue to have access to Confidential Information which, if disclosed, would not unfairly and inappropriately assist in competition against the Company or any of its affiliates, (iii) in the course of the Executive’s employment by a competitor, the Executive would inevitably use or disclose such Confidential Information, (iv) the Company and its affiliates have entered into this Management Services Agreement without substantial relationships with their customers and the following covenants:
Executive has had and will continue to have access to these customers, (av) During the Term of this Management Services Agreement Executive has received and except will receive specialized training from the Company and its affiliates, and (vi) the Executive has generated and will continue to generate goodwill for the performance of Medical Services Company and ancillary services at its affiliates in the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation course of the Dispensary Business at Offices contemplated byExecutive’s employment. Accordingly, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement Executive’s employment hereunder and for a period of five (5) two years from thereafter, the termination date of this Management Services AgreementExecutive agrees that the Executive will not, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity)indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise be associated withotherwise, lend funds toand whether or not for compensation) or render services to any person, lend its name tofirm, corporation or maintain any interest whatsoever other entity, in any enterprise (i) having to do with the provisionwhatever form, distribution, promotion or advertising of any type of management or administrative services or products to third parties engaged in competition with Business Manager; and/or (ii) offering the Company or any type of service its subsidiaries or product affiliates or in any other material business in which the Practice Territory Company or any of its subsidiaries or affiliates is engaged on the date of termination or in which they have planned, on or prior to third parties similar such date, to those offered be engaged in on or after such date, in any locale of any country in which the Company conducts business other than with the written consent of the Company granted by Business Manager to Practiceeither the then President and Chief Executive Officer of the Company or the Board of Directors of the Company. Notwithstanding the above restrictionforegoing, nothing herein shall prohibit Practice the Executive from being a passive owner of not more than one percent (1%) of the equity securities of a publicly traded corporation engaged in a business that is in competition with the Company or any of its holders from providing management and administrative services to its subsidiaries or their own medical practices after affiliates, so long as the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except Executive has no active participation in the event Physician terminates business of such agreement for Physician Cause or certain buyout rights are exercisedcorporation.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 2 contracts
Samples: Employment Agreement (Commercial Vehicle Group, Inc.), Employment Agreement (Commercial Vehicle Group, Inc.)
Noncompetition. Practice hereby recognizes and In further consideration of the compensation to be paid to the Executive hereunder (including during the Severance Period), the Executive acknowledges that -------------- in the course of his or her employment with the Company he or she shall become familiar with the Company’s trade secrets and with other Confidential Information concerning the Company and its subsidiaries and affiliates and that his or her services have been and shall be of special, unique and extraordinary value to the Company and its subsidiaries and affiliates. Therefore, the Executive agrees that, from the date hereof until twelve (12) months after the termination of the Executive’s employment with the Company or any of its subsidiaries or affiliates (collectively the “Noncompete Period”), he or she shall not, directly or indirectly (whether for compensation or otherwise) own or hold any interest in, manage, operate or control, any business engaged in a Competing Business Manager will incur substantial costs in providing or otherwise compete with the equipmentbusinesses of the Company or its subsidiaries or affiliates, support serviceseither as a general or limited partner, personnelproprietor, managementcommon or preferred shareholder, administrationdirector, and other items and agent, trustee, affiliate or otherwise, or perform, on behalf of any Competing Business, any services that are substantially similar to the subject matter of this Management Services Agreement and services that in the process of providing services under this Management Services Agreement, Practice will be privy Executive provided to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposedthe Company or its subsidiaries or affiliates during the Executive’s employment with the Company or its subsidiaries or affiliates. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and Executive acknowledges that the noncompetition covenants described hereunder Company’s and its subsidiaries’ and affiliates’ businesses are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits conducted nationally and agrees that during the Term provisions in this Section 3 shall operate throughout the United States. Nothing herein shall prohibit the Executive from being a passive owner of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five more than two percent (52%) of the equity outstanding securities of any publicly traded entity)company that constitutes a Competing Business, manageso long as the Executive has no active participation in the business of such company. The term “Competing Business” means any current contracts or business opportunities which the Executive was substantially engaged or about which the Executive gained substantial Confidential Information during the Executive’s employment with the Company, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise that is either (i) having to do conducted by the Company during the period of the Executive’s employment with the provisionCompany and at the time the Executive’s employment ends, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering pursued or proposed by the Company at any type of service or product in time during the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreement.
last twelve (c12) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination months of the Executive’s employment agreement, except in with the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercisedCompany.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 2 contracts
Samples: Executive Employment Agreement (STG Group, Inc.), Executive Employment Agreement (STG Group, Inc.)
Noncompetition. Practice hereby recognizes and The Executive acknowledges that -------------- Business Manager will incur substantial costs in providing (i) the equipment, support services, personnel, management, administration, and other items and Executive performs services of a unique nature for the Company that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Managerirreplaceable, and that Business Manager the Executive’s performance of such services to a competing business will result in irreparable harm to the Company, (ii) the Executive has had and will continue to have access to Confidential Information which, if disclosed, would not unfairly and inappropriately assist in competition against the Company or any of its affiliates, (iii) in the course of the Executive’s employment by a competitor, the Executive would inevitably use or disclose such Confidential Information, (iv) the Company and its affiliates have entered into this Management Services Agreement without substantial relationships with their customers and the following covenants:
Executive has had and will continue to have access to these customers, (av) During the Term of this Management Services Agreement Executive has received and except will receive specialized training from the Company and its affiliates, and (vi) the Executive is expected to generate goodwill for the performance of Medical Services Company and ancillary services at its affiliates in the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation course of the Dispensary Business at Offices contemplated byExecutive’s employment. Accordingly, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement Executive’s employment and for a period of five one (51) years from year thereafter, the Executive agrees that the Executive will not, whether on the Executive’s own behalf or on behalf or in conjunction with any person, firm, partnership, joint venture, association corporation or other business organization, directly or indirectly, own, manage, operate, control, invest in, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services, including, without limitation, brokerage or advisory services, to any person, firm, corporation or other entity, in whatever form, engaged in the business of owning, operating, developing and redeveloping retail-based or mixed use commercial real estate properties (the “Business”) or in any other business in which the Company or any of its affiliates is engaged on the termination date or in which they have planned, on or prior to such date, to be engaged in on or after such date within any state within the United States of this Management Services AgreementAmerica. Notwithstanding the foregoing, except in nothing herein shall prohibit the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(bExecutive from (i) hereof, Practice shall being a passive owner of not directly or indirectly own (excluding ownership of less more than five percent (5%) of the equity securities of any a publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever corporation engaged in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties a business that is in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice Company or any of its holders from providing management and administrative services affiliates, so long as the Executive has no active participation in the business of such corporation or (ii) owning, managing, operating, controlling, or being employed by any firm, corporation or other entity in the same capacity in which the Executive was engaged immediately prior to its or their own medical practices after the termination of this Management Services Agreement.
the Executive’s employment hereunder, as long as (ca) The written Employment Agreements described the Board has been apprised of the identity of, and the Executive’s role with, such firm, corporation or other entity and (b) the Board has previously approved in Section 5.1 hereof shall contain covenants writing the Executive’s role with such firm, corporation or other entity, in the case of Physician-Shareholder whereby they agree not both (a) and (b), prior to compete with Practice within the Practice Territory for one (1) year after termination of the Executive’s employment. In addition, the provisions of this Section 10(b) shall not be violated by the Executive commencing employment agreementwith a subsidiary, except division or unit of any entity that engages in a business in competition with the event Physician terminates Company or any of its affiliates so long as: (i) the Executive and such agreement for Physician Cause subsidiary, division or certain buyout rights are exercised.
unit does not engage in a business in competition with the Company or any of its affiliates; and (dii) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination Executive informs such entity of the employment agreement, except restrictions contained in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable10.
Appears in 2 contracts
Samples: Employment Agreement (Broad Street Realty, Inc.), Employment Agreement (Broad Street Realty, Inc.)
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and Executive expressly acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business ManagerCompany and its Subsidiaries market and sell products globally, and that Business Manager would not have entered into this Management Services Agreement without given the following covenants:
(a) During Executive’s substantial experience and expertise in the Term of this Management Services Agreement industry including his significant exposure, access to, and except for participation in the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation development of the Dispensary Business at Offices contemplated byCompany’s and its Subsidiaries’ strategy, marketing, intellectual property and confidential and proprietary information, his business affiliation with any individual or entity that sells or develops products similar to, or subject tothat may serve as a substitute for, this Management Services Agreement the Company’s or as expressly agreed any of its Subsidiaries’ products, would cause substantial and irreparable harm to by Business Manager in writingthe Company’s, Practice shall not establishand/or its Subsidiaries’ business. Accordingly, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and the Executive agrees that during his employment with the Term Company or any of this Management Services Agreement its Subsidiaries, and for a period of five (5) years from after the termination date of this Management Services Agreementhis employment with the Company and its Subsidiaries equal to (i) thirty-six (36) months if the Executive’s employment by the Company or a Subsidiary is terminated within a Protection Period or (ii) twelve (12) months if the Executive’s employment by the Company or a Subsidiary is terminated outside of a Protection Period, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereofExecutive shall not, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) indirectly, other than on behalf of the equity of any publicly traded entity)Company or its Subsidiaries, manageparticipate or become involved as an owner, operatepartner, controlmember, director, officer, employee, or consultant, or otherwise be associated withenter into any business relationship, lend funds towith any individual or entity anywhere in the world that develops, lend its name toproduces, manufactures, sells, or maintain any interest whatsoever in any enterprise (i) having to do with distributes starch, corn, rice, potato, stevia, strawberry and other agricultural raw materials, oils, sweeteners, starches, concentrates, essences or other products produced by the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice Company or any of its holders from providing management and administrative services to its Subsidiaries or their own medical practices after the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall could be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled used as a result of Practice's breach. If any provision of substitute for such products including, but not limited to, Tapioca, Manioc, Yucca or Potato starches; Dextrose, Stevia-based or other high intensity sweeteners, Glucose, Polyols, HFCS, High Meltose syrup, texturants, and Maltodextrin sweeteners; Prebiotics; Omega-3; seed development, emulsifiers, encapsulants, non-synthetic green products, Plant derived calcium and minerals; Inulin fibers; Resins used in adhesives and fragrances; Corn oil; Gluten protein; and Caramel Color, fruit concentrates, fruit purees, fruit essences or formulated fruit products, vegetable concentrates, vegetable purees, vegetable essences or formulated vegetable products, and specifically including but not limited to the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time periodfollowing entities that manufacture such or similar products: ADM, geographic area or restricted activityCargill, the covenant shall be reformed to comply with such time periodBunge, geographic area or restricted activity that would be held enforceableRoquette, and Xxxx & Xxxx.
Appears in 2 contracts
Samples: Executive Severance Agreement, Executive Severance Agreement (Ingredion Inc)
Noncompetition. Practice hereby recognizes and Provider acknowledges that -------------- Business Manager Service Company will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice Provider will be privy learn or have access to financial and other Confidential Information of Business Manager and other Regional Practices, Service Company to which Practice Provider would not otherwise be exposed. The parties Provider also recognize recognizes that the services to be provided by Business Manager Service Company will be feasible only if Practice Provider operates an active practice to which Physicians the dentists associated with Practice Provider devote their full professional time and attention. Practice Accordingly, Provider further agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenantsas follows:
(a) During the Term of this Management Services Agreement and Term, except for the performance of Medical Services and ancillary services at the Office as contemplated any Clinic or other office or facility covered by this Management Services Agreement or as expressly agreed to by Business Manager in writingAgreement, Practice Provider shall not establish, operate operate, or provide Medical Services Dental Care at a medical any dental office, clinic or other health dental care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated byTerritory nor have any ownership interest, direct or indirect, in any entity, or subject toparticipate in any joint venture, this Management Services Agreement or as expressly agreed to by Business Manager in writingwhich operates any such office, Practice shall not establish, operate or engage in a Dispensary Business at any other office clinic or facility.; and
(b) Except as specifically agreed to approved by Business Manager Service Company in writing, Practice commits and agrees that during the Term of this Management Services Agreement and for a period of five (5) years from immediately following the termination date of this Management Services AgreementAgreement is terminated for any reason, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice Provider shall not directly or indirectly own (excluding ownership of less than five percent (5%) of the equity of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in in, or otherwise enter into, engage in, or promote or assist (financially or otherwise) any entity, business, or enterprise which (i) having to do with the provisionprovides, distributiondistributes, promotion or advertising of promotes any type of management or administrative services or products to third parties in competition with Business Manager; and/or Service Company in the Practice Territory, or (ii) offering offers any type of service or product in the Practice Territory to third parties substantially similar to those offered by Business Manager Service Company to PracticeProvider in the Practice Territory. Notwithstanding the above restriction, nothing herein shall prohibit Practice Provider or any of its holders members from providing management and administrative services to its or their own medical dental practices after the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof , and nothing herein shall contain covenants of Physician-Shareholder whereby they agree not prohibit Provider or its members from contracting with a third party manager to compete with Practice within the Practice Territory provide administrative or management services for one (1) year its or their dental practices after termination of the employment agreement, except in the event Physician terminates this Agreement as long as such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements relationship complies with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and of this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceablesection.
Appears in 2 contracts
Samples: Service Agreement, Service Agreement (American Dental Partners Inc)
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and Executive acknowledges that the noncompetition covenants described hereunder are necessary Executive performs services of a unique nature for the protection of Business ManagerCompany that are irreplaceable, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the Executive’s performance of Medical Services and ancillary such services at to a competing business will result in irreparable harm to the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writingCompany. Accordingly, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and Executive agrees that during the Term of this Management Services Agreement period (the “Noncompetition Period”) commencing on the date hereof and for a period of five ending on the date that is three (53) years from after the termination date of this Management Services Agreementhis cessation of employment with the Company, except in he will not, without the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereofprior consent of the Board, Practice shall not either directly or indirectly own indirectly, in any capacity whatsoever, (excluding ownership i) compete (as defined below) with the Company Group, or (ii) operate, control, advise, be employed and/or engaged by, perform any consulting services for, invest in (other than the purchase of less no more than five percent (5%) of the equity of any publicly traded entity), manage, operate, control, securities of a company whose securities are traded on a national stock exchange) or otherwise be associated become employed by or with, lend funds any person, company or other entity who or which, at any time during the Noncompetition Period, competes with the Company Group. As used above and in this paragraph, “compete” is defined as being employed by a company engaged in the development, marketing, distribution or sale of package or other shipping rate comparison system software used via the Internet in any significant way similar to the Company’s xxx.xxxxxxxxx.xxx system and related services. As used in the preceding sentence, the term “company” shall include, but not be limited to, lend its name toPitney Xxxxx, NeoPost, Xxxxxx.xxx, Xxxxxx Rubbermaid, Kewill and any corporate parents or maintain any interest whatsoever in any enterprise (i) having to do subsidiaries of the foregoing. The Executive further expressly represents and understands that if the Executive’s employment is terminated, this Agreement will prohibit the Executive from future employment with all companies that compete with the provisionCompany Group, distributionand as such, promotion or advertising will constrain some of any type of management or administrative services or products the Executive’s overall possibilities for future employment. By executing this Agreement, Executive expressly represents that his training, education and background are such that his ability to third parties earn a living shall not be impaired by the foregoing restriction in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 2 contracts
Samples: Employment Agreement (RedRoller Holdings, Inc.), Employment Agreement (RedRoller Holdings, Inc.)
Noncompetition. Practice hereby recognizes It is recognized by Executive and acknowledges Employer that -------------- Business Manager Executive's duties under this Agreement will incur substantial costs in providing entail the equipmentreceipt of trade secrets and confidential information, support serviceswhich include not only information concerning Employer's current operations, personnelprocedures, managementsuppliers and other contacts, administrationbut also its short-range and long-range plans, and other items that such trade secrets and services that are the subject matter confidential information may have been developed by Employer and its Affiliates at substantial cost and constitute valuable and unique property of this Management Services Agreement and that in the process of providing services under this Management Services AgreementEmployer. Accordingly, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and Executive acknowledges that the noncompetition covenants described hereunder are foregoing makes it reasonably necessary for the protection of Business Manager, and Employer's business interests that Business Manager would Executive not have entered into this Management Services Agreement without compete with Employer or any of its Affiliates during the following covenants:
(a) During the Term term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement and for a reasonable and limited period of five (5) years from thereafter. Therefore, during the termination date term of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreementAgreement, except Executive shall not have any investment in a Competing Business other than a de minimis investment and shall not render personal services to any such Competing Business in any manner, including, without limitation, as owner, partner, director, trustee, officer, employee, consultant or advisor thereof; PROVIDED, HOWEVER, that this Section 3.3 shall not apply if Employer terminates Executive other than for Cause. For purposes of the event Physician terminates such agreement for Physician Cause preceding sentence, a de minimis investment is ownership of less than 1% of the outstanding stock or certain buyout rights are exercised.
(d) Practice debt of any Competing Business. Notwithstanding Section 2.7 above, if Executive shall obtain and enforce formal written agreements with Physician-Employees and Optometrists breach the covenants contained in the form of Exhibit 5.2Athis Section 3.3 or in Section 3.2, Employer shall have no further obligations to Executive pursuant to ------------ which the employees agree not this Agreement and may recover from Executive all such damages as it may be entitled to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity. In addition, Business Manager shall be entitled Executive acknowledges that any such breach is likely to enforce this Management Services Agreement by injunctive relief result in immediate and by specific performance of the Management Services Agreement, such relief irreparable harm to Employer for which money damages are likely to be inadequate. Accordingly, Executive consents to injunctive and other appropriate equitable relief that Employer may seek to protect Employer's rights under this Agreement. Such relief may include, without the necessity of posting a bondlimitation, cash an injunction to prevent Executive from disclosing any trade secrets or otherwise. Additionallyconfidential information concerning Employer to any Entity, nothing in this paragraph shall limit Business Manager's right to recover prevent any Entity from receiving from Executive or using any such trade secrets or confidential information and/or to prevent any Entity from retaining or seeking to retain any other damages to which it is entitled as a result employees of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceableEmployer.
Appears in 2 contracts
Samples: Employment Agreement (Elder Beerman Stores Corp), Employment Agreement (Elder Beerman Stores Corp)
Noncompetition. Practice In the event Executive breaches any provision of this Section 5(e), Executive’s entitlement to any payments payable pursuant to Section 5 of this Agreement, if and to the extent not yet paid, shall thereupon immediately cease and terminate as of the date of such breach, with Executive having the obligation to repay to the Company any payments that were paid to him during the period of the breach, provided that the non-compete covenant under this Section 5(e) remains in effect. Executive hereby recognizes acknowledges and acknowledges that -------------- Business Manager agrees that, during the course of Executive’s employment, Executive will incur substantial costs in providing the equipment, support services, personnel, management, administrationhave, and has had, access to and become familiar with various confidential and proprietary information of the Company and Affiliated Companies and/or relating to the business of the Company and Affiliated Companies (“Confidential Information”), including, but not limited to: business plans; operating results; financial statements and financial information; contracts; mailing lists; purchasing information; customer data (including lists, names and requirements); feasibility studies; personnel related information (including Executives’ skills, knowledge, capabilities, performance, compensation, compensation plans, and staffing plans); internal working documents and communications; and other items materials related to the businesses or activities of the Company and services that are Affiliated Companies which is made available only to Executives with a need to know or which is not generally made available to the subject matter of this Management Services Agreement and public. Failure to xxxx any Confidential Information as confidential, proprietary or protected information shall not affect its status as Confidential Information. Executive further acknowledges that in the process course of providing employment with the Company, Executive has and will become familiar with and involved in all aspects of the business and operations of the Company and Affiliated Companies, as well as with confidential information of or about third parties having business dealings with the Company and Affiliated Companies, including without limitation customers and prospective customers, suppliers, business partners and affiliates of the Company. Executive further acknowledges that Executive’s services under this Management Services Agreement, Practice will be privy to financial have been and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services shall continue to be provided by Business Manager will be feasible only if Practice operates an active practice of special, unique and extraordinary value to which Physicians associated with Practice devote their full professional time and attentionthe Company. Practice agrees and acknowledges that the noncompetition Therefore Executive hereby covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that upon termination of employment during the Term of this Management Services Agreement Employment Period and for a period of five (5) years from until the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of employment (the “Restricted Period”), without the express written consent of the Chief Executive of the Company (“CEO”) (or, for the CEO, the Board): Executive will not (except for services performed for or on behalf of the Company or Affiliated Companies), directly or indirectly, in any capacity (whether as a proprietor, owner, agent, officer, director, shareholder, organizer, partner, principal, manager, member, employee, contractor, consultant or otherwise) engage in employment agreementor provide services to any person or entity that, except within the Restricted Territory, provides or provided products or services in the event Physician terminates business of armored vehicle transportation, secure international transportation of valuables, coin processing services, currency processing services, cash management services, safe and safe control services, payment services, security and guarding services, deposit processing services/daily overnight credit, check imaging, or jewel or precious metal vaulting, that are the same as or substantially similar to, and competitive with, the products or services provided by the Company or Affiliated Companies at the time of or at any time during the twenty-four (24) months prior to the cessation of Executive’s employment, in return for remuneration or a right to remuneration of any kind, including but not limited to current or deferred compensation, wages, salary, fees, benefits, tangible or intangible property or ownership rights or interests or other property rights, whether paid or conveyed to Executive or promised in the future by any person, business or other entity as a result of, or in exchange for, any work or services performed, or any intellectual property conveyed by Executive. The Restricted Territory shall consist of those states or countries (i) in which Executive was physically located at the time Executive provided services in furtherance of the business interests of the Company, (ii) for which Exexutive had supervisory responsibility (in whole or in part), if any, on behalf of the Company, or (iii) to which Executive was assigned by the Company; provided, however, that in all cases the Restricted Territory shall be limited to those states or countries where Executive provided such agreement for Physician Cause services or certain buyout rights are exercised.
had such responsibility or assignment within twenty-four (d24) Practice months prior to the cessation of Executive’s employment; provided, further, that the “Restricted Territory” shall obtain not include any state or country where the Company either does not provide or has ceased providing products and enforce formal services. Notwithstanding any provision hereof to the contrary, this Section 5(e) does not restrict Executive’s right to (i) provide services without remuneration to a not-for-profit entity; or (ii) own securities of any Entity that files periodic reports with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, provided that Executive’s total ownership constitutes less than two percent (2%) of the outstanding securities of such company and such acquisition does not violate: (A) the Company’s code of ethics or any other policy of the Company, including any policy related to inside information; (B) any applicable securities law; or (C) any applicable standstill or other similar contractual obligation of the Company. Notwithstanding the foregoing, the restrictions set forth in Section 5(e) shall not apply to Executive’s post-termination employment or activities if (1) Executive requests a waiver and receives the prior express written agreements with Physician-Employees and Optometrists informed consent of the Board or the CEO, subject to such limitations and restrictions as the Chairman of the Board or CEO may impose in his or her sole discretion, or (2) if Executive executes a waiver, in the form attached hereto as Exhibit A (the “Waiver”), of Exhibit 5.2A, all rights to receive payments of compensation pursuant to ------------ which this Agreement and delivers such signed Waiver within 10 days following the employees agree not to compete with Practice within the Practice Territory for one (1) year after Executive’s termination of employment. Such Waiver shall not, however, extinguish, avoid or in any way limit Executive’s other obligations under the Agreement. Except as to employment agreementpermitted in this Section 5(e), except before Executive accepts employment with any other person or entity while any restriction under Section 5(e) is in effect, Executive will provide the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that prospective employer with written notice of the provisions in of Section 5.6 hereof 5(e) only (and this Section 5.7 are designed to preserve not the goodwill of Business Manager full Agreement) and the goodwill will deliver a copy of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition notice to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceableCompany.
Appears in 2 contracts
Samples: Change in Control Agreement (Brinks Co), Change in Control Agreement (Brinks Co)
Noncompetition. Practice hereby recognizes It is recognized by the Employee and the Employer that the Employee’s duties hereunder will require the receipt and creation of Proprietary Information, as defined in Section 8.1. The Proprietary Information has been and will continue to be developed by the Employer 8 and its subsidiaries and affiliates at substantial cost and constitutes valuable and unique property of the Employer. The Employee further acknowledges that -------------- Business Manager due to the nature of the Employee’s position, the Employee will incur substantial costs have access to Proprietary Information affecting plans and operations in providing every location in which the equipment, support services, personnel, management, administrationEmployer (and its subsidiaries and affiliates) does business or plans to do business throughout the world, and other items the Employee’s decisions and services that are recommendations on behalf of the subject matter of this Management Services Agreement and that in Employer may affect its operations throughout the process of providing services under this Management Services Agreementworld. Accordingly, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and Employee acknowledges that the noncompetition covenants described hereunder are foregoing makes it reasonably necessary for the protection of Business Manager, and the Employer’s business interests that Business Manager would the Employee not have entered into this Management Services Agreement without compete with the following covenants:
(a) During Employer or any of its subsidiaries or affiliates during the Term of this Management Services Agreement and except for the performance of Medical Services a reasonable and ancillary services at the Office limited period thereafter, as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facilityprovided below.
(bi) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees The Employee covenants that during the Term of this Management Services Agreement and for a period of five (5) years from one year following the later of either a termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause employment pursuant to Section 7.2(b6 or a termination of at-will employment following expiration of the Term, the Employee will not undertake work for a Competing Business, as defined in Section 8.4(ii), provided, however, that (a) hereofin the case of a termination of employment pursuant to Section 6.4 or 6.5, Practice the non-compete period shall not directly exceed the lesser of one year or indirectly own the period for which the Employee is entitled to Compensation Payments, as provided in Section 7.3(i), and (excluding ownership b) in the case of less five percent (5%) a termination of at will employment following expiration of the equity Term, the non-compete period shall not exceed the lesser of one year or the period for which the Employee receives compensation payments as provided under any publicly traded entity)applicable Employer separation pay program. For purposes of this covenant, manage“undertake work for” shall include performing services, operatewhether paid or unpaid, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with capacity, including as an officer, director, owner, consultant, employee, agent or representative, where such services involve the provision, distribution, promotion performance of similar duties or advertising of oversight responsibilities as those performed by the Employee during the 18-month period preceding the Employee’s termination from the Employer for any type of management or administrative services or products to third parties in competition with Business Manager; and/or reason.
(ii) offering As used in this Agreement, the term “Competing Business” shall mean any type of service or product in business that, at the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination time of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.determination:
Appears in 2 contracts
Samples: Employment Agreement (J C Penney Co Inc), Employment Agreement (J C Penney Co Inc)
Noncompetition. Practice hereby recognizes and The Executive acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process course of providing services under this Management Services Agreement, Practice will be privy to financial his or her employment with the Company he or she may become familiar with the Company’s trade secrets and with other Confidential Information of Business Manager concerning the Company and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time its subsidiaries and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, affiliates and that Business Manager would not his or her services have entered into this Management Services Agreement without been and may be of special, unique and extraordinary value to the following covenants:
Company and its subsidiaries and affiliates. Therefore, the Executive agrees that, from the date hereof until twelve (a12) During months after the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation termination of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do Executive’s employment with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice Company or any of its holders from providing management subsidiaries or affiliates (collectively the “Noncompete Period”), he or she shall not, directly or indirectly (whether for compensation or otherwise) perform, on behalf of any business engaged in a Competing Business, any services that are substantially similar to the services that the Executive provided to the Company or its subsidiaries or affiliates during the Executive’s employment with the Company or its subsidiaries or affiliates. The Executive acknowledges that the Company’s and administrative services to its or their own medical practices after the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights subsidiaries’ and affiliates’ businesses are exercised.
(d) Practice shall obtain conducted nationally and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges agrees that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve 3 shall operate throughout the goodwill of Business Manager and United States. The term “Competing Business” means any current contracts or business opportunities which the goodwill Executive was substantially engaged or about which the Executive gained substantial Confidential Information during the Executive’s employment with the Company, that is either (i) conducted by the Company during the period of the individual Physicians Executive’s employment with the Company and Optometrists at the time the Executive’s employment ends, or (ii) pursued or proposed by the Company at any time during the last twelve (12) months of Practicethe Executive’s employment with the Company. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or Notwithstanding the foregoing provisions in this Section 5.73, the Company retains the right to not enforce these provisions in addition which the Executive seeks to work for a Competing Business on a contract and/or potential business opportunity that the Company has decided to not pursue, where the contract and/or business opportunity has been awarded to another contractor because the Company is ineligible to bid on that contract, or because of any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance contractual restrictions that might limit the enforcement of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing provisions in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceableSection 3.
Appears in 2 contracts
Samples: Executive Employment Agreement (STG Group, Inc.), Executive Employment Agreement (STG Group, Inc.)
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the following noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenantsprovisions shall apply:
(ai) During The Executive shall not, at any time during his employment with the Term Company or the twelve (12) month period commencing on the day immediately following the date (the “Termination Date”) on which his employment with the Company terminates for any reason, without the consent of the Board, directly or indirectly engage in any activity that the Board, in the exercise of its reasonable business judgment, determines is competitive with or adverse to the Company’s business or welfare, whether alone, as a partner of any partnership or joint venture, or as an officer, director, employee, independent contractor, consultant, or investor (a “Competitive Activity”). In furtherance of the immediately foregoing sentence, the Executive shall promptly notify the Board (or its representative) in advance in writing (which shall include a description of the activity) of his intention to engage in any activity which could reasonably be deemed to be subject to this noncompetition provision, and the Board shall respond to the Executive in writing within 10 calendar days indicating its approval or objections to the Executive’s engagement in the activity, provided, however, that if the Board (or its representative) does not respond to or request additional information from the Executive within such ten (10) day period, the Board’s approval shall be deemed to be granted. If the Executive fails to notify the Board of his intended activity in advance, the Board shall retain all its rights of objections. Notwithstanding the preceding provisions of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by Paragraph, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice Section 5(a)(i) shall not establishbe construed as preventing the Executive from investing his personal assets in any business that competes with the Company, operate in such form or provide Medical Services at a medical office, clinic or other health care facility anywhere within manner as will not require any services on the Practice Territory. During part of the Term of this Management Services Agreement and except for Executive in the operation of the Dispensary Business at Offices contemplated byaffairs of the business in which such investments are made, but only if the Executive does not own or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less control five percent (5%) or more of any class of the equity outstanding stock, or of any publicly traded entityprofits interest or capital interest (as applicable), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or such business.
(ii) offering The payments, benefits, and other entitlements under this Agreement are being made in consideration of, among other things, the obligations of this Section 5 and, in particular, compliance with Section 5(a) of this Agreement; provided, however, that all such payments, benefits, or other entitlements under the Agreement are subject to and conditioned upon the Executive’s entering into the Release and Agreement referred to in Section 6(h) of this Agreement.
(iii) During the twenty-four (24) month period commencing on the day immediately following the Termination Date, the Executive shall not (A) influence or attempt to influence any type person, firm, association, partnership, corporation, or other entity that is a contracting party with the Company to terminate any written agreement with the Company, except to the extent the Executive is acting on behalf of service the Company in good faith, or product (B) hire or attempt to hire for employment any person who is employed by the Company, or attempt to influence any such person to terminate employment with the Company, except to the extent the Executive is acting on behalf of the Company in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restrictiongood faith; provided, however, that nothing herein shall prohibit Practice the Executive from generally advertising for personnel not specifically targeting any executive or any other personnel of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services AgreementCompany.
(civ) The written During the Term of Employment Agreements described in Section 5.1 hereof and for the twenty-four (24) month period immediately thereafter, the Executive shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within publicly criticize or disparage the Practice Territory for one (1) year after termination Company, any Related Company, or any director, officer, executive, or agent of the employment agreementCompany or any Related Company, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercisedas may be required by law.
(dv) Practice shall obtain During the Term of Employment and enforce formal written agreements with Physicianfor the twenty-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one four (124) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activitymonth period immediately thereafter, the covenant Company shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceablenot issue any defamatory statements about the Executive.
Appears in 2 contracts
Samples: Settlement Agreement (Bally Total Fitness Holding Corp), Chief Executive Officer Employment Agreement (Bally Total Fitness Holding Corp)
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs Provided the Company is not in providing breach of its obligations to make any of the equipment, support services, personnel, management, administration, and other items and services that are payments or provide any of the subject matter benefits provided in Sections 4 through 10 of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information during the period beginning with the Executive’s termination of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that employment during the Term for any reason and ending on the 12-month anniversary of this Management Services Agreement the Executive’s termination of employment (hereinafter be referred to as the “Restricted Period”), the Executive (i) shall not accept a position on the board of any business entity without the approval of the HRCC, which approval shall not be unreasonably withheld and for a period of five (5ii) years from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly indirectly, on the Executive’s own (excluding ownership behalf or on behalf of less five percent (5%) any person or entity, compete with the Company by performing activities or duties substantially similar to the activities or duties performed by the Executive for the Company during the year preceding the Executive’s termination of employment for any business entity that is a Direct Competitor of the equity Company within the Restricted Area. A “Direct Competitor” of the Company is any publicly traded entity), manage, operate, control, business or otherwise be associated with, lend funds to, lend its name to, operations in direct competition with the Company within the Restricted Area owned or maintain any interest whatsoever in any enterprise operated by (i) having to do with the provisionPepsiCo, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business ManagerInc.; and/or (ii) offering any type Xx. Xxxxxx Snapple Group, Inc.; (iii) if PepsiCo, Inc. or Xx. Xxxxxx Snapple Group, Inc. do not have the highest or next highest market share among the producers and distributors of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physiciannon-Shareholder whereby they agree not to compete with Practice alcoholic beverages within the Practice Territory for one Restricted Area at the time the Executive’s employment terminates, then any company that has the highest or next highest market share among the producers and distributors of non-alcoholic beverages within the Restricted Area at the time the Executive’s employment with the Company terminates; or (1iv) year after termination any company that provides bottling operations to the companies listed in subparts (i), (ii), and (iii) within the Restricted Area. The “Restricted Area” is any geographic area within the scope of the employment agreementExecutive’s management authority. The Executive expressly acknowledges and agrees that, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination because of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill nature of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition services the Executive has provided to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activityCompany, the covenant shall be reformed Executive has provided services throughout the Restricted Area and, therefore, the Restricted Area is reasonably defined to comply with such time period, geographic area or restricted activity that would be held enforceableprotect the Company’s legitimate business interests.
Appears in 2 contracts
Samples: Employment Agreement (Coca-Cola Enterprises, Inc.), Employment Agreement (Coca-Cola Enterprises, Inc.)
Noncompetition. Practice hereby recognizes and Executive acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and (i) Executive performs services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary important nature for the protection of Business ManagerCompany, and that Business Manager Executive’s performance of such services to a competing business may result in irreparable harm to the Company Group, (ii) Executive is a member of the executive and management personnel of the Company and its subsidiaries and controlled affiliates, (iii) Executive has had and will continue to have access to Confidential Information (as defined below) and trade secrets which, if disclosed, would not unfairly and inappropriately assist in competition against the Company Group, (iv) in the course of Executive’s employment by a competitor, Executive could use or disclose such Confidential Information and trade secrets, (v) the members of Company Group have entered into this Management Services Agreement without the following covenants:
substantial relationships with their customers and Executive has had and will continue to have access to these customers, and (avi) During the Term of this Management Services Agreement Executive has generated and except will continue to generate goodwill for the performance Company Group in the course of Medical Services Executive’s employment. Accordingly, during the Employment Term and ancillary services at for 12 months following the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated byTermination Date, or subject toduring such longer period (not to exceed 18 months) that Executive is receiving severance benefits under the Severance Plan or Section 11(c) above, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and Executive agrees that during the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services AgreementExecutive will not, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity)indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise be associated withotherwise, lend funds toand whether or not for compensation) or render services to any person, lend its name toin whatever form, or maintain any interest whatsoever engaged in a Competing Business in any enterprise (i) having to do with the provision, distribution, promotion or advertising locale of any type of management country in which the Company or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practiceits subsidiaries and controlled affiliates conduct business. Notwithstanding the above restrictionforegoing, nothing herein shall prohibit Practice or Executive from being a passive owner of not more than four and ninety nine one hundredths percent (4.99%) of the equity securities of a publicly traded corporation engaged in a business that is in competition with the Company Group, so long as Executive has no active participation in the business of such corporation. For purposes of this Agreement, the term “Competing Business” shall mean (x) any business that (A) is engaged primarily in the design and/or delivery of customized software solutions to third party customers and/or (B) is engaged primarily in the provision of information technology consulting services to third party customers (that, is in each case, is competitive with the Company Group), and/or (y) for the avoidance of doubt, any of the following (including any Affiliates thereof, any successor entities thereto and any businesses or divisions divested therefrom): Accenture PLC*, Aricent Inc., Boston Consulting Group*, Deloitte & Touche LLP*, Ciklum ApS, CapGemini SE, CGI Group Inc., Cognizant Technology Solutions Corporation, DXC Technology Company, Elephant Ventures, LLC, EPAM Systems, Inc., Equal Experts Inc., Globant LLC, HCL Technologies Limited, Hexaware Technologies Limited, International Business Machines Corp., Infosys Limited, iSoftStone Holdings Limited, KPMG US LLP*, McKinsey & Company*, Mindtree Limited, NearForm Ltd, Ness Technologies Inc., Persistent Systems Ltd., Perficient, Inc., PricewaterhouseCoopers LLP*, Sapient Corporation, SoftServe, Inc., Symphony Teleca Corporation, Tech Mahindra Limited, RazorFish, LLC, Three Pillar Global, Inc., VanceInfo Technologies Inc., Wipro Limited, Xebia Nederland B.V. For the avoidance of doubt, Competing Business shall not include software product companies that offer customized solutions for such products and are not competitive with the Company or its holders from providing management and administrative Subsidiaries with respect to provision of information technology services to third party customers.1 As used herein, “competitive with the Company or its or their own medical practices after Subsidiaries” means the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court same or similar solutions or services of competent jurisdiction to be unenforceable due to an excessive time period, geographic area the Company or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceableits Subsidiaries.
Appears in 2 contracts
Samples: Employment Agreement (Thoughtworks Holding, Inc.), Employment Agreement (Turing Holding Corp.)
Noncompetition. Practice hereby recognizes and The Employee acknowledges that -------------- Business Manager will incur substantial costs in providing (i) the equipment, support services, personnel, management, administration, and other items and Employee performs services of a unique nature for the Company that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Managerirreplaceable, and that Business Manager the Employee’s performance of such services to a competing business will result in irreparable harm to the Company, (ii) the Employee has had and will continue to have access to Confidential Information which, if disclosed, would not unfairly and inappropriately assist in competition against the Company or any of its affiliates, (iii) in the course of the Employee’s employment by a competitor, the Employee would inevitably use or disclose such Confidential Information, (iv) the Company and its affiliates have entered into this Management Services Agreement without substantial relationships with their customers and the following covenants:
Employee has had and will continue to have access to these customers, (av) During the Term of this Management Services Agreement Employee has received and except will receive specialized training from the Company and its affiliates, and (vi) the Employee has generated and will continue to generate goodwill for the performance of Medical Services Company and ancillary services at its affiliates in the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation course of the Dispensary Business at Offices contemplated byEmployee’s employment. Accordingly, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement Employee’s employment hereunder and for a period of five one (51) years from year thereafter, the termination date of this Management Services AgreementEmployee agrees that the Employee will not, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity)indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise be associated withotherwise, lend funds toand whether or not for compensation) or render services to any person, lend its name tofirm, corporation or maintain any interest whatsoever other entity, in any enterprise (i) having to do with the provisionwhatever form, distribution, promotion or advertising of any type of management or administrative services or products to third parties engaged in competition with Business Manager; and/or (ii) offering the Company or any type of service its subsidiaries or product affiliates or in any other material business in which the Practice Territory Company or any of its subsidiaries or affiliates is engaged on the date of termination or in which they have planned, on or prior to third parties similar such date, to those offered by Business Manager to Practicebe engaged in on or after such date, in any locale of any country in which the Company conducts business. Notwithstanding the above restrictionforegoing, nothing herein shall prohibit Practice the Employee from being a passive owner of not more than one percent (1%) of the equity securities of a publicly traded corporation engaged in a business that is in competition with the Company or any of its holders from providing management and administrative services to its subsidiaries or their own medical practices after affiliates, so long as the termination Employee has no active participation in the business of such corporation. In addition, the provisions of this Management Services AgreementSection 9(b) shall not be violated by the Employee commencing employment with a subsidiary, division or unit of any entity that engages in a business in competition with the Company or any of its subsidiaries or affiliates so long as the Employee and such subsidiary, division or unit does not engage in a business in competition with the Company or any of its subsidiaries or affiliates.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 2 contracts
Samples: Employment Agreement (Phibro Animal Health Corp), Employment Agreement (Phibro Animal Health Corp)
Noncompetition. Practice hereby recognizes and The Employee acknowledges that -------------- Business Manager will incur substantial costs in providing (i) the equipment, support services, personnel, management, administration, and other items and Employee performs services of a unique nature for the Company Group that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Managerirreplaceable, and that Business Manager the Employee’s performance of such services to a competing business will result in irreparable harm to the Company Group, (ii) the Employee has had and will continue to have access to Confidential Information which, if disclosed, would not unfairly and inappropriately assist in competition against the Company Group or any of its affiliates, (iii) in the course of the Employee’s employment by a competitor, the Employee would inevitably use or disclose such Confidential Information, (iv) the Company Group and its affiliates have entered into this Management Services Agreement without substantial relationships with their customers and the following covenants:
Employee has had and will continue to have access to these customers, (av) During the Term of this Management Services Agreement Employee has received and except will receive specialized training from the Company Group and its affiliates, and (vi) the Employee has generated and will continue to generate goodwill for the performance of Medical Services Company Group and ancillary services at its affiliates in the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation course of the Dispensary Business at Offices contemplated byEmployee’s employment. Accordingly, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement Employee’s employment hereunder and for a period of five twelve (512) years from months thereafter, the termination date of this Management Services AgreementEmployee agrees that the Employee will not, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity)indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise be associated withotherwise, lend funds toand whether or not for compensation) or render services to any person, lend its name tofirm, corporation or maintain any interest whatsoever other entity, in any enterprise whatever form, engaged in (i) having the fast casual restaurant business in North America that derives at least twenty percent (20%) of its revenue from the sale of Mediterranean inspired items or in any other material business in which the Company Group or any of its affiliates is engaged on the date of the Employee’s termination of employment or in which they have planned, on or prior to do with the provisionsuch date, distribution, promotion to be engaged in on or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practiceafter such date. Notwithstanding the above restrictionforegoing, nothing herein shall prohibit Practice the Employee from being a passive owner of not more than one percent (1%) of the equity securities of a publicly traded corporation engaged in a business that is in competition with the Company Group or any of its holders from providing management and administrative services to its or their own medical practices after affiliates, so long as the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except Employee has no active participation in the event Physician terminates business of such agreement for Physician Cause or certain buyout rights are exercisedcorporation.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 2 contracts
Samples: Employment Agreement (Zoe's Kitchen, Inc.), Employment Agreement (Zoe's Kitchen, Inc.)
Noncompetition. Practice hereby recognizes and The Executive acknowledges that -------------- Business Manager will incur substantial costs in providing (i) the equipment, support services, personnel, management, administration, and other items and Executive performs services of a unique nature for the Company that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Managerirreplaceable, and that Business Manager the Executive’s performance of such services to a competing business will result in irreparable harm to the Company, (ii) the Executive has had and will continue to have access to Confidential Information, which, if disclosed, would not unfairly and inappropriately assist in competition against the Company or any of its affiliates, (iii) in the course of the Executive’s employment by a competitor, the Executive would inevitably use or disclose such Confidential Information, (iv) the Company and its affiliates have entered into this Management Services Agreement without substantial relationships with their customers and the following covenants:
Executive has had and will continue to have access to these customers, (av) During the Term of this Management Services Agreement Executive has received and except will receive specialized training from the Company and its affiliates, and (vi) the Executive has generated and will continue to generate goodwill for the performance of Medical Services Company and ancillary services at its affiliates in the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation course of the Dispensary Business at Offices contemplated byExecutive’s employment. Accordingly, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement Executive’s employment hereunder and for a period of five six (56) years from months thereafter (the termination date of this Management Services Agreement“Restricted Period”), except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereofExecutive agrees that the Executive will not, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity)indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise be associated withotherwise, lend funds toand whether or not for compensation) or render services to any person, lend its name tofirm, corporation or maintain any interest whatsoever other entity, in whatever form, engaged in the business of international or domestic maritime transport of petroleum or petroleum-based products, including but not limited to crude oil and refined petroleum products (the “Business”), in each case in any enterprise (i) having to do with the provision, distribution, promotion or advertising locale of any type country (and including, for the avoidance of management doubt, shipping through international waters) in which or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type from which the Company conducts business as of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practiceend of the Employment Term. Notwithstanding the above restrictionforegoing, nothing herein shall prohibit Practice the Executive from being a passive owner of not more than one percent (1%) of the equity securities of a publicly traded corporation engaged in a business that is in competition with the Company or any of its holders from providing management and administrative services to its subsidiaries or their own medical practices after affiliates, so long as the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except Executive has no active participation in the event Physician terminates business of such agreement for Physician Cause or certain buyout rights are exercisedcorporation.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 2 contracts
Samples: Employment Agreement (Gener8 Maritime, Inc.), Employment Agreement (General Maritime Corp / MI)
Noncompetition. Practice hereby recognizes and The Employee acknowledges that -------------- Business Manager will incur substantial costs in providing (i) the equipment, support services, personnel, management, administration, and other items and Employee performs services of a unique nature for the Company Group that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Managerirreplaceable, and that Business Manager the Employee’s performance of such services to a competing business will result in irreparable harm to the Company Group, (ii) the Employee has had and will continue to have access to Confidential Information which, if disclosed, would not unfairly and inappropriately assist in competition against the Company Group, (iii) in the course of the Employee’s employment by a competitor, the Employee would inevitably use or disclose such Confidential Information, (iv) the Company Group has substantial relationships with their respective customers and the Employee has had and will continue to have entered into this Management Services Agreement without access to these customers, (v) the following covenants:
Employee has received and will receive specialized training from the Company Group, and (avi) During the Term of this Management Services Agreement Employee has generated and except will continue to generate goodwill for the performance of Medical Services and ancillary services at Company Group in the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation course of the Dispensary Business at Offices contemplated byEmployee’s employment. Accordingly, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement Employee’s employment with any Company Group Member and for a period of five one (51) years from year thereafter (the termination date of this Management Services Agreement“Restricted Period”), except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereofEmployee agrees that the Employee will not, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity)indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise be associated withotherwise, lend funds toand whether or not for compensation) or render services to any person, lend its name tofirm, corporation or maintain any interest whatsoever other entity, in any enterprise (i) having to do with the provisionwhatever form, distribution, promotion or advertising of any type of management or administrative services or products to third parties engaged in competition with Business Manager; and/or (ii) offering any type Company Group Member or in any other material business in which any Company Group Member is engaged on the date of service termination or product in the Practice Territory which they have planned, on or prior to third parties similar such date, to those offered by Business Manager to Practicebe engaged in on or after such date, in any locale of any country in which any Company Group Member conducts business. Notwithstanding the above restrictionforegoing, nothing herein shall prohibit Practice or any the Employee from being a passive owner of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreement.
not more than two percent (c2%) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreementequity securities of a publicly traded corporation engaged in a business that is in competition with the Company Group, except so long as the Employee has no active participation in the event Physician terminates business of such agreement for Physician Cause or certain buyout rights are exercisedcorporation.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 2 contracts
Samples: Performance Restricted Stock Unit Agreement (Atento S.A.), Time Restricted Stock Unit Agreement (Atento S.A.)
Noncompetition. Practice hereby recognizes and THIS SECTION 10(a) WILL HAVE NO FORCE OR EFFECT, AND WILL 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 WILL 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 -------------- Business Manager in the course of the Executive’s employment with the Company and its Affiliates and their predecessors, the Executive will incur substantial costs in providing become familiar with the equipment, support services, personnel, management, administrationtrade secrets of, and other items confidential information concerning, the Company and its Affiliates and their predecessors, that the Executive’s services that are will be of special, unique and extraordinary value to the subject matter of this Management Services Agreement Company and its Affiliates and that the Company’s ability to accomplish its purposes and to successfully pursue its business plan and compete in the process marketplace depends substantially on the skills and expertise of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposedthe Executive. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business ManagerTherefore, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation further consideration of the Dispensary Business at Offices contemplated bycompensation being paid to the Executive hereunder, or subject tothe Executive agrees that, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement Employment Period and for a period of five (5) years from twelve months following the termination date of this Management Services Agreementthe Employment Period for any reason (the “Restricted Period”), except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall Executive will not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity)own, manage, operate, control, or otherwise be associated participate in, consult with, lend funds to, lend its name torender services for, or maintain any interest whatsoever in any enterprise (i) having to do manner engage in any business competing with the provisionbusinesses of the Company or its Affiliates, distributionin any country where the Company or its Affiliates conducts business; provided, promotion or advertising however, that passive investments amounting to no more than three percent of any type the voting equity of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in a business and the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management Executive’s other current positions and administrative services to its or their own medical practices after the termination of this Management Services Agreement.
(c) The written Employment Agreements activities described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree 3 will not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercisedbe prohibited hereby.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 2 contracts
Samples: Employment Agreement (Conexant Systems Inc), Employment Agreement (Conexant Systems Inc)
Noncompetition. Practice hereby recognizes and The Executive acknowledges that -------------- Business Manager will incur substantial costs in providing (i) the equipment, support services, personnel, management, administration, and other items and Executive performs services of a unique nature for the Company that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Managerirreplaceable, and that Business Manager the Executive’s performance of such services to a competing business will result in irreparable harm to the Company, (ii) the Executive has had and will continue to have access to Confidential Information, which, if disclosed, would not unfairly and inappropriately assist in competition against the Company or any of its affiliates, (iii) in the course of the Executive’s employment by a competitor, the Executive would inevitably use or disclose such Confidential Information, (iv) the Company and its affiliates have entered into this Management Services Agreement without substantial relationships with their customers and the following covenants:
Executive has had and will continue to have access to these customers, (av) During the Term of this Management Services Agreement Executive has received and except will receive specialized training from the Company and its affiliates, and (vi) the Executive has generated and will continue to generate goodwill for the performance of Medical Services Company and ancillary services at its affiliates in the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation course of the Dispensary Business at Offices contemplated byExecutive’s employment. Accordingly, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement Executive’s employment hereunder and for a period of five eighteen (518) years from the termination date of this Management Services Agreementmonths thereafter provided, except however, that in the event Practice terminates this Management Services Agreement for cause that the Executive’s is receiving the enhanced benefits pursuant to Section 7.2(b7(c)(ii) hereofdue to the Executive’s termination in connection with a Change in Control, Practice shall not twelve (12) months (the “Restricted Period”), the Executive agrees that the Executive will not, directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity)indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise be associated withotherwise, lend funds toand whether or not for compensation) or render services to any person, lend its name tofirm, corporation or maintain any interest whatsoever other entity, in whatever form, engaged in the business of international or domestic maritime transport of petroleum or petroleum-based products, including but not limited to crude oil and refined petroleum products (the “Business”), in each case in any enterprise (i) having to do with the provision, distribution, promotion or advertising locale of any type country (and including, for the avoidance of management doubt, shipping through international waters) in which or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type from which the Company conducts business as of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practiceend of the Employment Term. Notwithstanding the above restrictionforegoing, nothing herein shall prohibit Practice the Executive from being a passive owner of not more than one percent (1%) of the equity securities of a publicly traded corporation engaged in a business that is in competition with the Company or any of its holders from providing management and administrative services to its subsidiaries or their own medical practices after affiliates, so long as the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except Executive has no active participation in the event Physician terminates business of such agreement for Physician Cause or certain buyout rights are exercisedcorporation.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 2 contracts
Samples: Employment Agreement (Gener8 Maritime, Inc.), Employment Agreement (General Maritime Corp / MI)
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and Executive acknowledges that the noncompetition covenants described hereunder are necessary Executive has and will continue to perform services of a unique nature for the protection of Business ManagerCompany that are irreplaceable, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the Executive's performance of Medical Services and ancillary such services at to a competing business will result in irreparable harm to the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writingCompany. Accordingly, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and Executive agrees that during the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services AgreementExecutive will not, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity)indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise be associated withotherwise, lend funds toand whether or not for compensation) or render services to any of the following entities: Xxxxxxx Group Inc., lend its name toPHI, Inc., CHC Helicopter, Milestone Aviation Group, Libra Group, Global Vectra Helicorp Ltd., RLC, LLC, VIH Aviation Group, and entities related to Xx Xxxxxxxx, and any entity, affiliate or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising principal of any type entity leasing helicopter aircraft to or buying helicopter aircraft from any of management the Company's leasing clients or administrative services any of their affiliates, subsidiaries and/or related entities, including any other person, firm, corporation or products to third parties other entity, in competition with Business Manager; and/or (ii) offering any type of service whatever form, which following the date hereof is or product subsequently becomes engaged in the Practice Territory to third parties similar to those offered by Business Manager to Practicebusiness of providing helicopter aviation services (collectively, the “Prohibited Activities”) during the period from the date hereof until March 30, 2014 (the “Restricted Period”). Notwithstanding the above restrictionforegoing, nothing herein shall prohibit Practice the Executive from being (i) a passive owner of not more than one percent (1%) of the equity securities of a publicly traded corporation engaged in the Prohibited Activities, so long as the Executive has no active participation in the business of such corporation or (ii) employed by, or providing services to, a subsidiary, division or unit of any of its holders from providing management and administrative entity that engages in any such Prohibited Activities so long as the Executive does not provide any services to its or their own medical practices after the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination such portion of the employment agreemententity's business that engages in such Prohibited Activities. It is further agreed that, except in and notwithstanding the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain foregoing, Executive is a licensed attorney at law and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination that none of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof restrictions or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager Prohibited Activities referenced above shall be entitled deemed to enforce this Management Services Agreement by injunctive relief in any manner restrict Executive from performing legal services or legal consultation of any kind or nature for any person or entity at any time, including but not limited to those persons and by specific performance of entities specifically referred to herein as and to the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed extent required to comply with such time period, geographic area or restricted activity that would be held enforceableapplicable rules of professional conduct for attorneys.
Appears in 2 contracts
Samples: Separation and Consulting Agreement, Separation and Consulting Agreement (Era Group Inc.)
Noncompetition. Practice hereby recognizes The Executive covenants and acknowledges agrees that -------------- Business Manager will incur substantial costs in providing during the equipment, support services, personnel, management, administration, period of the Executive’s employment hereunder and other items and services that are the subject matter for a period of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenantstwo years thereafter he shall not:
(a) During in the Term United States of America, or in any other country of the world in which the Corporation has done business at any time during the last two years prior to the termination of the Executive’s employment with the Corporation, directly or indirectly, whether as principal or as agent, officer, director, employee, consultant, shareholder, or otherwise, alone or in association with any other person, corporation or other entity, engage or participate in, be connected with, lend credit or money to, furnish consultation or advice or permit his name to used in connection with, any Competing Business. For purposes of this Management Services Agreement Agreement, the term “Competing Business” shall mean any Person, corporation or other entity engaged in the business of selling or attempting to sell any product or service which competes materially with (i) products or services sold by the Corporation within the two years prior to termination of the Executive’s employment hereunder or (ii) new products of the Corporation with respect to which the Corporation had allocated engineering resources on or before the Date of Termination to develop such new products, provided that, Executive’s employment in a non-competing division of a Competing Business shall be deemed to not be employment by Executive in a Competing Business, and except for the performance Executive’s ownership of Medical Services and ancillary services at no more than 1% of the Office as contemplated by this Management Services Agreement or as expressly agreed to by outstanding voting securities of a Competing Business Manager in writing, Practice shall not establish, operate or provide Medical Services at be a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term violation of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.Section 6(a);
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services AgreementCompeting Business, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) solicit the trade of, or trade with, any customer, prospective customer, supplier, or prospective supplier of the equity of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business ManagerCorporation; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreement.and
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not for a Competing Business, directly or indirectly solicit or induce, or attempt to compete with Practice within the Practice Territory for one (1) year after termination solicit or induce, any employee of the employment agreementCorporation to leave the Corporation for any reason whatsoever, except or hire any employee of the Corporation. The non-competition and non-solicitation obligations contained in this Section 6 shall be extended by the length of time during which Executive shall have been in breach of any of said obligations. Notwithstanding the foregoing, (i) the covenant contained in this Section 6 shall terminate in the event Physician that the Corporation defaults in any of its post-termination payment obligations to the Executive, and (ii) the covenant contained in this Section 6 shall be of no force and effect if the Corporation chooses to give notice of its intent not to renew this Agreement and the Agreement terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable10(b)(i) hereof.
Appears in 1 contract
Samples: Executive Employment Agreement (Tollgrade Communications Inc \Pa\)
Noncompetition. Practice hereby recognizes The Executive shall not: (i) prior to the Effective Date and acknowledges that -------------- Business Manager will incur substantial costs in providing for the equipment, support services, personnel, management, administrationthree-year period following the Effective Date, and other items and services that are within the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement Territory (as defined below) without the following covenants:
prior written consent of the Company, compete with the Company by engaging, directly or indirectly, as a licensee, owner, manager, consultant, officer, employee, director, investor or otherwise, in any business activities (a) During that directly compete with the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation business activities of the Dispensary Business at Offices contemplated byCompany, whether for a competitor of the Company or subject tofor an entity whose internal business activities include or propose to include the business activities engaged in by the Company, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed for any cigarette manufacturer, or (c) for any entity which engages in business activities in the sourcing, processing and/or marketing of tobacco leaf products or other value added tobacco products and services, including but not limited to, the production of Cut Rag, expanded tobacco products, toasting and blending services or seed research and supply; or (ii) usurp for his own benefit any corporate opportunity under consideration by the Company during his employment, unless the Company shall have finally decided not to by Business Manager in writing, Practice commits and agrees that during the Term take advantage of such corporate opportunity. The restrictions of part (i) of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice paragraph shall not directly or indirectly own (excluding apply to a passive investment by the Executive constituting ownership of less than five percent (5%) of the equity of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever entity engaged in any enterprise business described in part (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreement.
(c) paragraph. The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and Executive acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to possible restrictions on his activities which it is entitled may occur as a result of Practice's breach. If any provision his compliance with his obligations under this paragraph are required for the reasonable protection of the covenants herein is held Company's legitimate business interests, do not unduly restrict his ability to earn a livelihood in his chosen field of employment, and do not otherwise impose an undue hardship on him. The Executive also acknowledges that if he were to engage in any business activity covered by a court part (i) of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activitythis paragraph, the covenant Company would suffer an unfair competitive disadvantage because the disclosure of the Company's confidential and proprietary information would be inevitable given the Executive's career with the Company, and his extensive unique and intimate knowledge of such information and of the Company's business. The Executive further acknowledges and agrees that the time, territory and scope of activities prohibited by the provisions of this paragraph, including the possible worldwide reach of the non-competition provisions, are reasonable and necessary for protection of the Company's legitimate business interests in view of the unique nature of the Company's business, its competitive position as one of the only companies engaged in such business in a worldwide market, the Executive's high-level position with the Company prior to the Effective Date, the limited time period of the non-competition provisions, and the unique and intimate knowledge of the Company's business, its confidential and proprietary information and the special needs and preferences of its customers and suppliers the Executive has acquired during and as a result of his employment with the Company in a high-level position, all of which would give the Executive an unfair competitive advantage against the Company if the Executive were to breach the non-competition provisions anywhere within the Territory. For purposes of this paragraph, "Territory" means the geographic areas and locations where the Company and its affiliates carry on or transact their business, the Company and its affiliates sell or market their products or services, and the Company or its affiliates' customers are located, including without limitation (A) the world, (B) Africa, Asia, Europe, North America and South America, (C) each of the countries in Africa, Asia, Europe, North America and South America, respectively, as if listed individually herein, (D) Brazil, (E) the United States of America, (F) each of the states of the United States of America as if listed individually herein, (G) the State of North Carolina, (H) the Commonwealth of Virginia, (I) each county within the State of North Carolina as if listed individually herein, (J) each county within the Commonwealth of Virginia as if listed individually herein, (K) the territory within a 100 mile radius of the Company's office in Morrisville, North Carolina, and (L) the territory within a 100 mile radius of each other office of the Company or any affiliate (whether now existing or hereafter established) as if listed individually herein. The Executive acknowledges and agrees that Article 13.7 (Failure To Comply) of the Employment Agreement shall be reformed expanded to comply with such time period, geographic area or restricted activity that would be held enforceableinclude the obligations set forth in this Section (c).
Appears in 1 contract
Samples: Separation Agreement (Alliance One International, Inc.)
Noncompetition. Practice hereby recognizes and acknowledges The Executive agrees that, during the Restricted Period, the Executive shall not be employed by, serve as a consultant to, or otherwise assist or directly or indirectly provide services to a Competitor (as defined below) if (i) the services that -------------- Business Manager will incur substantial costs in providing the equipmentExecutive is to provide to the Competitor are the same as, support servicesor substantially similar to, personnel, management, administrationany of the services that the Executive provided to the Company or the Affiliates, and other items and such services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates with respect to any location in which the Company or an active practice Affiliate had material operations during the twelve (12) month period prior to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated byTermination Date, or subject to, this Management Services Agreement with respect to any location in which the Company or as expressly agreed an Affiliate had devoted material resources to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that establishing operations during the Term of this Management Services Agreement and for a twelve (12) month period of five prior to the Termination Date; or (5ii) years from the termination date of this Management Services Agreementtrade secrets, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereofConfidential Information, Practice shall not directly or indirectly own proprietary information (excluding ownership of less five percent (5%including, without limitation, confidential or proprietary methods) of the equity Company and the Affiliates to which the Executive had access could reasonably be expected to benefit the Competitor if the Competitor were to obtain access to such secrets or information. For purposes of this paragraph, services provided by others shall be deemed to have been provided by the Executive to Competitor if the Executive had material supervisory responsibilities with respect to the provision of such services. The term “Competitor” means any publicly traded entityenterprise (including a person, firm, business, division, or other unit, whether or not incorporated) during any period in which a material portion of its business is (and during any period in which it intends to enter into business activities that would be) materially competitive in any way with any business in which the Company or any of the Affiliates were engaged during the twelve (12) month period prior to the Executive’s Termination Date (including, without limitation, any business if the Company devoted material resources to entering in such business during such twelve (12) month period). Notwithstanding the foregoing, managethe term “Competitor” shall not include a business of a Competitor if such business would not, operateas a stand-alone enterprise, controlconstitute a “Competitor” under the foregoing definition, provided that Executive does not render any services to, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do assist the portion of the business that competes with the provisionCompany and its Affiliates. For the avoidance of doubt, distributionthe Company’s and Affiliates’ businesses shall include, promotion or advertising without limitation, the lines of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product business set forth in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding Company’s periodic reports filed with the above restrictionSecurities and Exchange Commission, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges provided that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph sentence shall be construed to limit Business Manager's right to recover any other damages to which it is entitled as a result the type of Practice's breach. If any provision business of the covenants Company and the Affiliates or the restrictions with respect to such businesses in the future. Any payments or other benefits owed to Executive at time of separation as described herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply contingent upon Executive’s compliance with such time period, geographic area or restricted activity that would be held enforceablethe post-employment noncompetition provisions.
Appears in 1 contract
Noncompetition. Practice hereby recognizes Xx. Xxxxx agrees that to protect the Company’s Confidential Information, it is necessary to enter into the following restrictive covenants which are ancillary to the enforceable promises between the Company and acknowledges that -------------- Business Manager will incur substantial costs Xx. Xxxxx in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposedParagraph 2(c). The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attentionXx. Practice agrees and Xxxxx acknowledges that the noncompetition covenants described hereunder are necessary for the protection field of Business Managerpharmaceutical research, development, and sales in which the Company is engaged is very competitive. Xx. Xxxxx further acknowledges that Business Manager would not have entered into the Company’s field of operations is global, and the Company has competitors and/or potential competitors throughout the world. Thus, the covenants in this Management Services Agreement without Paragraph 2(d) are intended to be worldwide restrictions. Accordingly, Xx. Xxxxx hereby agrees that, to protect the following covenants:
(a) During Company’s Confidential Information, during the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation greater of the Dispensary Business at Offices contemplated byServices Period or the period ending one year after the Services Period hereof (the “Restrictive Period”), she will not be engaged, directly or subject toindirectly, as an executive, consultant or an employee of an enterprise in the business of researching, inventing, manufacturing, marketing, selling or developing products that are directly competitive with those the Company was researching, developing or selling (including Xolair®) as of February 1, 2006 (collectively “Company Products”) if Xx. Xxxxx possesses Confidential Information that could be used to materially enhance the development or marketing of such products. For this Management Services Agreement purpose, a product shall be considered directly competitive with a Company Product only if it is an antibody product developed or as expressly agreed to by Business Manager marketed for use in writing, Practice shall not establish, operate treating the same disease or engage in condition for which a Dispensary Business at any other office Company Product has been developed or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and marketed that addresses the same biological or pharmacological target. Xx. Xxxxx hereby agrees that during the Term Restrictive Period she will not take any action intended to induce any employee of the Company other than Xxxxx Xxxxx to terminate his or her employment with the Company. The obligations of this Management Services Paragraph 2(d) for the period specified above will survive termination of Xx. Xxxxx’x services under this Agreement for one year. During the Restrictive Period, Xx. Xxxxx shall provide the Company with written notice and obtain Board approval (which will not be unreasonably withheld) prior to engaging in any activity, as an employee, consultant or in any capacity, on Xx. Xxxxx’x behalf or for any person, association, or entity, that a period of five reasonable person would view as being directly competitive (5) years from the termination date of this Management Services Agreement, except as defined in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(bimmediately preceding paragraph) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) with the business of the equity of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services AgreementCompany.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 1 contract
Samples: Employment Agreement (Tanox Inc)
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During Executive agrees that while employed by the Term Company and for a three year period following the termination of this Management Services Agreement and except such employment, Executive will not, without the prior written consent of the Board of Directors of the Company, directly or indirectly: (i) own, manage, operate, control or participate in, or be associated with as a director, officer, shareholder, partner, joint venture, employee, consultant or otherwise, any business which provides medical transcription services or any other services provided or performed by the Company during the term of Executive's employment, which compete, directly or indirectly, with the Company in any city or other geographic area where any business is carried on by the Company or any of its subsidiaries within the twelve month period immediately preceding the termination of his employment (a "Prohibited Business"); (ii) become financially interested in any person or entity engaged in any such Prohibited Business; (iii) employ or solicit any employee of the Company either to work for him personally or on behalf of any other person or entity whether or not engaged in a Prohibited Business; or (iv) solicit any client or customer of the Company with which Executive had substantial contact or oversight responsibility within the twelve month period immediately preceding the termination of his employment for the performance provision of Medical Services and ancillary services at constituting a Prohibited Business. Notwithstanding the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writingforegoing, Practice Executive shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed be deemed to by Business Manager in writing, Practice shall not establish, operate or engage be engaged in a Dispensary Prohibited Business at solely by reason of his ownership of not more than 5% of any other office or facilityclass of securities registered under the Securities Act of 1933, as amended, even if the issuer of such class of securities is engaged in a Prohibited Business.
(b) Except as specifically agreed to by Business Manager in writingIn connection with the foregoing provisions of this Section 3, Practice commits the Executive represents that his experience, capabilities and circumstances are such that such provisions will not prevent him from earning a livelihood The Executive further agrees that during the Term of limitations set forth in this Management Services Agreement Section 3 (including, without limitation, any time or territorial limitations) are reasonable and properly required for a period of five (5) years from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) adequate protection of the equity businesses of any publicly traded entity), manage, operate, control, the Company and its subsidiaries. It is understood and agreed that the covenants made by the Executive in this Section 3 shall survive the expiration or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory Executive acknowledges and agrees that a remedy at law for one (1) year after termination any breach or threatened breach of the employment agreementprovisions of this Section 3 would be inadequate and, except in therefore, the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges Executive agrees that the provisions in Section 5.6 hereof Company and this Section 5.7 are designed any of its subsidiaries shall be entitled to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, seek injunctive relief in addition to any other available nights and remedies in cases of any such breach or threatened breach; provided, however, that nothing contained herein shall be construed as prohibiting the Company or any of its subsidiaries from pursuing any other rights and remedies available under this Management Services Agreement at law for any such breach or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's threatened breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 1 contract
Samples: Covenant Not to Compete and Severance Agreement (MRC Group)
Noncompetition. Practice hereby recognizes and acknowledges (a) Each Seller severally agrees that -------------- Business Manager will incur substantial costs in providing during the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that three-year period (in the process case of providing services under this Management Services AgreementLevy) or the one-year period (in the case of Dow Jonex xxx Curtxx) xxom and after the Closing Date, Practice will be privy to financial and Confidential Information such Seller shall not, whether as an owner, shareholder, partner, employee, consultant, advisor, independent contractor or otherwise, directly or indirectly (except as an employee of Business Manager and any Company) engage in the business of producing, publishing, distributing or selling a regional or city magazine the content of which is generally centered on Texas or a city or other Regional Practices, to which Practice would not otherwise be exposedarea or location within Texas. The parties also recognize acknowledge and agree that the services this provision does not apply to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote any of any Seller's other publications (whether print or on-line), in their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Managercurrent formats, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office existing as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated bydate hereof, even if such existing publications carry articles or subject to, this Management Services Agreement or as expressly agreed publish issues from time to by Business Manager time pertaining to events of interest covered in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facilitythe Magazine.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees Each Seller severally acknowledges that during the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement, except restrictions in the event Practice terminates this Management Services Agreement for cause pursuant foregoing Subsection (a) are reasonable in scope and duration and necessary to Section 7.2(b) hereofprotect, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) and to enable Buyer as the owner of the equity Business to receive the anticipated benefits of, the goodwill of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services AgreementBusiness.
(c) The written Employment Agreements described restrictions under foregoing Subsection (a) shall be severable and constitute a separate covenant with respect to each type of business. Each Seller agrees that if in Section 5.1 hereof any judicial proceeding a court shall contain covenants of Physician-Shareholder whereby they agree not refuse to compete with Practice within the Practice Territory for one (1) year after termination enforce any of the employment agreementseparate covenants under foregoing Subsection (a), except then such unenforceable covenant shall be deemed eliminated from the provisions of this Agreement for the purposes of such proceeding to the extent necessary to permit the remaining separate covenants to be enforced in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercisedproceeding.
(d) Practice For a period of two years after the Closing Date, each Seller severally agrees to hold in confidence, unless compelled to disclose by judicial or administrative process or by other requirements of law or the rules of any stock exchange, all confidential documents and information concerning Buyer or the Business, provided that the restrictions in this Subsection shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in not preclude the form enforcement of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates any such agreement for Physician CauseSeller's rights under this Agreement.
(e) Practice understands and Each Seller severally acknowledges that Buyer and the provisions Companies will be irreparably harmed in Section 5.6 hereof the event of a breach or threatened breach by any of them of the restrictions under this Section, that there would be no adequate relief at law or in damages to compensate Buyer or the Companies for any such breach, and that Buyer or the Companies shall be entitled to injunctive relief requiring specific performance of this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, by such Seller in addition to any other remedies remedy that may be available under this Management Services Agreement at law or in equity, Business Manager .
(f) Each Seller severally acknowledges and agrees that the restrictions in this Section shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance for the benefit of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activityBuyer, the covenant Companies and their respective successors and assigns, and shall be reformed to comply with such time periodenforceable by Buyer, geographic area or restricted activity that would be held enforceablethe Companies and their respective successors and assigns.
Appears in 1 contract
Samples: Stock Purchase Agreement (Emmis Broadcasting Corporation)
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During While employed by the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement Company and for a period of five twelve (512) years from months after the termination date first payment of this Management Services AgreementSeverance Payments is made hereunder (the “Noncompete Period”), except unless otherwise waived in writing by the Company (such waiver to be in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereofCompany’s sole and absolute discretion), Practice the Employee shall not not, directly or indirectly, engage in, operate, manage, have any investment or interest or otherwise participate in any manner (whether as employee, officer, director, partner, agent, security holder, creditor, consultant or otherwise) in any sole proprietorship, partnership, corporation or business or any other person or entity (each, a “Competitor”) that engages, directly, or indirectly own in a Competing Business; provided, that (excluding ownership A) the Employee may continue to hold securities of less the Company and/or acquire, solely as an investment, shares of capital stock or other equity securities of any Competitor which are publicly traded, so long as the Employee does not control, acquire a controlling interest in, or become a member of a group which exercises direct or indirect control of, more than five percent (5%) of any class of equity securities of such Competitor; and (B) the equity of any publicly traded entity)Employee may be employed by or consult with a Competitor whose primary business is not a Competing Business, manage, operate, control, or otherwise be associated with, lend funds so long as the Employee does not have direct and day-to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do -day supervisory responsibilities with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services respect to its or their own medical practices after the termination Competing Business. For purposes of this Management Services Agreement, the term “Competing Business” means mobile fleet fueling.
(cb) The written Employment Agreements described Notwithstanding anything in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not 6.3(a) to compete with Practice within the Practice Territory for one (1) year after termination of contrary, if this Agreement is terminated by the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, Company pursuant to ------------ Section 4.4, the Noncompete Period shall continue and the provisions of Section 6.3(a) shall remain in effect during any period that Severance Payments are being made by the Company pursuant to Sections 4.4 and 5.1; provided, that if the Company pays to the Employee the Severance Payments in a lump sum pursuant to Section 5.2, the provisions of Section 6.3(a) shall remain in effect for the period during which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician CauseSeverance Payments would have otherwise been made.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 1 contract
Samples: Employment Agreement (Streicher Mobile Fueling Inc)
Noncompetition. Practice hereby recognizes It is recognized by the Employee and the Employer that the Employee’s duties hereunder will require the receipt and creation of Proprietary Information, as defined in Section 7.1. The Proprietary Information has been and will continue to be developed by the Employer and its subsidiaries and affiliates at substantial cost and constitutes valuable and unique property of the Employer. The Employee further acknowledges that -------------- Business Manager due to the nature of the Employee’s position, the Employee will incur substantial costs have access to Proprietary Information affecting plans and operations in providing every location in which the equipment, support services, personnel, management, administrationEmployer (and its subsidiaries and affiliates) does business or plans to do business throughout the world, and other items the Employee’s decisions and services that are recommendations on behalf of the subject matter of this Management Services Agreement and that in Employer may affect its operations throughout the process of providing services under this Management Services Agreementworld. Accordingly, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and Employee acknowledges that the noncompetition covenants described hereunder are foregoing makes it reasonably necessary for the protection of Business Manager, and the Employer’s business interests that Business Manager would the Employee not have entered into this Management Services Agreement without compete with the following covenants:
(a) During Employer or any of its subsidiaries or affiliates during the Term of this Management Services Agreement and except for the performance of Medical Services a reasonable and ancillary services at the Office limited period thereafter, as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facilityprovided below.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees 7.4.1 The Employee covenants that during the Term of this Management Services Agreement and for a period of five (5) years from one year following the later of either a termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause employment pursuant to Section 7.2(b) hereof, Practice shall not directly 5 or indirectly own (excluding ownership a termination of less five percent (5%) at-will employment following expiration of the equity Term, the Employee will not undertake work for a Competing Business, as defined in Section 7.4.2. For purposes of any publicly traded entity)this covenant, manage“undertake work for” shall include performing services, operatewhether paid or unpaid, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with capacity, including as an officer, director, owner, consultant, employee, agent or representative, where such services involve the provision, distribution, promotion performance of similar duties or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in oversight responsibilities as those performed by the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice Employee during all or any portion of its holders the 18-month period preceding the Employee’s termination from providing management and administrative services to its or their own medical practices after the termination of this Management Services AgreementEmployer for any reason.
(c) The written Employment Agreements described 7.4.2 As used in Section 5.1 hereof this Agreement, the term “Competing Business” shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within mean any business that, at the Practice Territory for one (1) year after termination time of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.determination:
Appears in 1 contract
Noncompetition. Practice hereby recognizes 8.1 Employee acknowledges and acknowledges agrees that -------------- Business Manager his training, work and experience with the Company and its affiliated companies will incur substantial costs in providing the equipment, support services, personnel, management, administrationenhance his value to competitors, and other items and services that are the subject matter nature of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would Employee has access will make it difficult, if not otherwise be exposed. The parties also recognize impossible for Employee to work for any person or entity that competes with the services to be provided by Business Manager will be feasible only if Practice operates an active practice business of the Company and its affiliated companies without disclosing or utilizing the Confidential Information to which Physicians associated with Practice devote their full professional time and attentionEmployee has access during the course of Employee’s employment or term as a director of the Company. Practice agrees and Employee further acknowledges that the noncompetition covenants Company and its affiliated companies are principally engaged in the business as described hereunder are necessary for the protection of Business Manager, in Section 8.2 below and that Business Manager would not have entered into this Management Services Agreement without the Company and its affiliated companies provide products and services to customers throughout the United States of America and in international markets. Employee further acknowledges and agrees that the Company’s agreement to provide Employee with access to its Confidential Information is ancillary to and contingent upon Employee’s agreement that Employee will not, unless authorized by the Board in writing, during the term of his employment by the Company and for a period of three years immediately following covenantsthe Employee’s Separation Date (collectively, the “Noncompete Period”), directly or indirectly:
(a) During carry on, initiate or have any ownership interest in any business that services, manufactures or distributes products or services similar to those of the Term Company or its affiliated companies or that otherwise competes with the Company or its affiliated companies in any geographic area or market where the Company or any of its affiliated companies are conducting business as of the Separation Date or have conducted business during the previous twelve (12) months, provided that this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice Section 8.1(a) shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within apply to the Practice Territory. During the Term ownership by Employee of this Management Services Agreement and except for the operation less than 5% of the Dispensary Business at Offices contemplated by, outstanding shares of a publicly-held entity that has shares listed for trading on a securities exchange registered with the SEC or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in through the automated quotation system of a Dispensary Business at any other office or facility.registered securities association;
(b) Except become employed by, derive benefit from or otherwise provide services for compensation (as specifically agreed a consultant, agent or otherwise) or divert the Company’s business to by Business Manager in writing, Practice commits and agrees any person or entity that during competes with the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) business of the equity of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever Company in any enterprise (i) having to do with geographic area or market where the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice Company or any of its holders from providing management and administrative services to its affiliated companies are conducting business as of the Separation Date or their own medical practices after have conducted business during the termination of this Management Services Agreement.previous twelve (12) months; or
(c) contact, solicit, or divert, for the purpose of attempting to enter into a business relationship related to the manufacture, distribution or servicing of products or services manufactured, distributed, or provided by Company or its affiliated companies, successors or assigns, with any customer with whom the Company has had a contractual or business relationship during the two-year period prior to the Separation Date.
8.2 The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not Company, together with its affiliated companies, is an oil and gas services company with an integrated calcium chloride and brominated products manufacturing operation that supplies feedstocks to compete with Practice within the Practice Territory for one (1) year after termination energy markets, as well as other markets and the business of the employment agreementCompany and it affiliated companies is conducted throughout the United States and in international markets and includes, except without limitation, the following:
(a) the manufacture and marketing of clear brine fluids, additives and other associated products and services (including without limitation filtration and wellbore cleanup services), for the oil and gas industry for use in well drilling, completion and workover operations, as well as the event Physician terminates such agreement marketing of certain clear brine fluids and dry chemical products to a variety of domestic and international markets outside the energy industry;
(b) providing services required for Physician Cause or certain buyout rights are exercised.the abandonment of depleted oil and gas wxxxx and the decommissioning of platforms, pipelines and other associated equipment and providing electric wireline, engineering, diving, workover, and drilling services;
(c) producing oil and gas from properties acquired by the Company and its affiliated companies, including conducting development and exploitation operations on its oil and gas properties; and
(d) Practice providing production testing equipment, technology or services, wellhead compression equipment, technology or services, or equipment, technology or services required for the separation and recycling of oily residuals generated from petroleum refining operations.
8.3 Employee acknowledges and agrees that the scope of each of the agreements and promises contained in this Section 8 are reasonable as to time, area and scope of activity restrained and are necessary to protect Company’s legitimate business interests.
8.4 Notwithstanding the foregoing, Employee shall obtain be permitted during the Noncompete Period to continue to own and enforce formal written agreements with Physician-Employees manage his oil and Optometrists gas interests, (none of which are located anywhere in the form inland waters of Exhibit 5.2Aor offshore in the Gulf of Mexico or in East Baton Rouge Parish, pursuant to ------------ which Louisiana) and invest in, acquire and/or manage additional oil and gas interests; provided, however, that the employees agree not to compete with Practice within Employee may not, either directly or indirectly, invest in, acquire and/or manage additional oil and gas interests at any time during the Practice Territory for one (1) year after termination Employment Period without the prior approval of the employment agreementBoard; provided, except that the foregoing limitation shall not apply to (i) interests in oil and gas properties located anywhere other than (A) in the event Physician terminates such agreement for Physician Cause.
inland waters of or offshore in the Gulf of Mexico or (eB) Practice understands and acknowledges that in East Baton Rouge Parish, Louisiana, or (ii) the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill ownership by Employee of Business Manager and the goodwill less than 5% of the individual Physicians and Optometrists outstanding shares of Practice. Accordingly, if Practice breaches any obligation a publicly-held entity that has shares listed for trading on a securities exchange registered with the SEC or through the automated quotation system of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceableregistered securities association.
Appears in 1 contract
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During Except as set forth in Section 7.6(f) hereof, the Term of this Seller agrees that unless (i) the Funds have at least Five Hundred Million ($500,000,000) in Assets Under Management Services Agreement and except for (the performance of Medical Services and ancillary services at “Funds Capacity Benchmark”) or (ii) the Office Company terminates the Seller as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation member of the Dispensary Company without Cause (as that term is defined in the Amended LLC Agreement), (x) such Seller shall devote, and Seller shall cause the Investment Advisor to devote, as much of their professional time as is commercially reasonable to provide investment management services to the Funds and (y) neither the Seller nor any of its Affiliates shall, without the prior written consent of the Purchaser (which consent may be withheld in the Purchaser’s sole and absolute discretion):
(i) engage, either directly or indirectly, as a principal, employee or for its own account or solely or jointly with others, in any business that competes with the Business at Offices contemplated byas it exists on the Closing Date;
(ii) give information or financial assistance to, or subject tomake any investment in, this Management Services Agreement any business or activity that competes with the Business as expressly agreed to by Business Manager in writingit exists on the Closing Date; or
(iii) solicit for hire or hire, Practice shall or solicit for hire or hire on behalf of any third party, any individual who is or has been a management employee of the Company, any of its present or future Subsidiaries, the Investment Advisor, or the Seller, unless and until such management employee has not establishbeen an employee of any of the Purchaser, operate or engage in a Dispensary Business the Company, the Investment Adviosr, the Seller and their respective Subsidiaries for at any other office or facilityleast 12 months.
(b) Except as specifically agreed to by Business Manager set forth in writingthis subparagraph (b) or in Section 7.6(f), Practice commits and unless the Company terminates the Seller as a member of the Company without Cause (as defined in the Amended LLC Agreement), the Seller agrees that during neither it nor any of its Affiliates shall, without the Term prior written consent of the Purchaser (which consent may be withheld in the Purchaser’s sole and absolute discretion) permit any investor in any of the Funds as of the first date the Funds Capacity Benchmark is met (the “Benchmark Date”) to be an investor in any other fund or similar vehicle affiliated with the Seller unless such investor is also an investor in the Fund in an amount no less than the amount invested as of the Benchmark Date.
(c) After the Funds (on a combined basis) reach the Funds Capacity Benchmark, if Seller or any of its Affiliates create or manage a fund or similar investment vehicle with the same or similar strategy, then at any time the Funds’ Assets Under Management fall below the Applicable AUM, it is agreed that the Seller will include in the calculation of Applicable AUM and Sharing Percentage (as defined in the Amended LLC Agreement) Assets Under Management from such other fund or investment vehicle (paying the same management fees and incentive allocation or fees as the assets found in the Funds, unless such requirement is waived by the Purchaser) as is required so that the Funds’ Assets Under Management again reaches the Applicable AUM.
(d) The Purchaser hereby consents to, after the Closing, the Seller or any of its Affiliates advising separately managed accounts that have an initial investment of more than seven million dollars ($7,000,000) (and, for avoidance of doubt, in calculating the initial investment for such separately managed account the Seller and the Affiliates cannot aggregate separately managed accounts of multiple investors investing less than seven million dollars ($7,000,000)); provided, however, that:
(i) as of the Base Date or any time prior thereto, the client who has assets in a separately managed account has never been a client in any of the Funds;
(ii) the Seller and its Affiliates shall not solicit, or in any manner encourage, any investor that qualifies to be an investor in any Fund to invest in a separately managed account;
(iii) in all cases, such separately managed accounts shall not be included in the calculation of the Funds Capacity Benchmark; and
(iv) so long as the Funds, collectively, have not achieved the Applicable AUM amount, the Funds shall remain open to additional investors and to new investments. If any Fund is closed to new investors, or is no longer accepting new investments, and the Funds, collectively, have not achieved the Applicable AUM amount, then the Seller and the Affiliates agree that it shall not accept or advise newly created separately managed accounts of any kind (but may accept additional managed account investments by existing separately managed account clients in existing separately managed accounts). Additionally, the Purchaser hereby agrees that it will not participate in fees provided to the Company from separately managed accounts that exist at the time of the Closing, as set forth in Section 7.6(d) of the Company Disclosure Letter, and, subject to the terms of this Management Services subparagraph, it will not participate in fees provided to the Company from separately managed accounts of more than seven million dollars ($7,000,000) entered into in the future by the Seller or its Affiliates; provided, however, if the Purchaser agrees to allow a separately managed account in any Fund that is either (x) less than seven million dollars ($7,000,000), or (y) from a client who was previously a client in any of the Funds, the Purchaser shall participate in all fees as set forth in Section 2.1(a)(ii) of this Agreement and for such amount will count towards the Applicable AUM.
(e) Upon the liquidation or otherwise closing of a period Fund as a result of a decision by Xxxx Xxxxx to cease to be actively engaged in managing the operations of the Funds, the Seller and Xxxx Xxxxx agree that if, within five (5) years from of such Funds closing, either the termination date of this Management Services AgreementSeller or he subsequently engages, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not either directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity), manage, operate, controlindirectly, or otherwise be associated with, lend funds to, lend for its name toor his own account or solely or jointly with others, or maintain any interest whatsoever in any enterprise (i) having to do with the provisionorganizes or otherwise advises, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to for its or their his own medical practices after account or for others another fund or investment vehicle or account of substantially the termination of this Management Services Agreementsame investment style as the Funds, the Purchaser will be granted the same voting, economic and other rights flowing from such other fund or investment vehicle or account as though it was the Funds.
(cf) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and Seller acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve Purchaser is relying on the goodwill of Business Manager and the goodwill good faith efforts of the individual Physicians Seller and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition its Affiliates to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled continue to enforce this Management Services Agreement by injunctive relief and by specific performance of operate the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breachFunds. If any provision contained in this Section 7.6 shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Section, but this Section shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. It is the intention of the parties that if any of the restrictions or covenants contained herein is held to cover a geographic area or to be for a length of time which is not permitted by Applicable Law, or in any way construed to be too broad or to any extent invalid, such provision shall not be construed to be null, void and of no effect, but to the extent such provision would be valid or enforceable under Applicable Law, a court of competent jurisdiction shall construe and interpret or reform this Section to be unenforceable due to an excessive provide for a covenant having the maximum enforceable geographic area, time period, geographic area or restricted activity, the covenant period and other provisions (not greater than those contained herein) as shall be reformed to comply with valid and enforceable under such time period, geographic area or restricted activity Applicable Law. The Sellers acknowledges that the Purchaser would be held enforceableirreparably harmed by any such breach of this Section and that there would be no adequate remedy at law or in damages to compensate the Purchaser for any such breach. The Seller agrees that the Purchaser shall be entitled to injunctive relief requiring specific performance by the Seller of this Section, and the Seller consents to the entry thereof.
Appears in 1 contract
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term and until the 12-month anniversary of the CFO’s Date of Termination if the CFO’s Appointment is terminated by the Company for Cause or the CFO terminates Appointment without Good Reason, the CFO shall not engage in or become associated with any Competitive Activity. For purposes of this Management Services Agreement and except Section 9(b), a “Competitive Activity” shall mean any business or other endeavor that engages in any country in which the Company has significant business operations as of the Date of Termination to a significant degree in a business that directly competes with all or any substantial part of the Company’s business, provided, that, a Competitive Activity shall not include (i) the writing of any book or article relating to subjects other than Competitive Activity (ii) an internet based business in general so long as such business does not compete directly with the Company. The CFO shall be considered to have become “associated with a Competitive Activity” if he becomes involved as an owner, employee, CFO, director independent contractor, agent, partner, advisor, or in any other capacity calling for the performance rendition of Medical Services the CFO’s personal services, with any individual, partnership, corporation or other organization that is engaged in a Competitive Activity and ancillary services at his involvement relates to a significant extent to the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writingCompetitive Activity of such entity; provided, Practice however, that the CFO shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
be prohibited from (bx) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of owning less five than one percent (51%) of the equity of any publicly traded entity)or private corporation, manage, operate, control, whether or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties not such corporation is in competition with Business Manager; and/or the Company, (iiy) offering owning any type percentage of service any publicly traded or product in private corporation the Practice Territory to third parties similar to those offered by Business Manager to Practiceprimary business of which is not a Competitive Activity, or (z) serving as a director of a corporation or other entity the primary business of which is not a Competitive Activity. Notwithstanding If, at any time, the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination provisions of this Management Services Agreement.
(cSection 7(b) The written Employment Agreements described in Section 5.1 hereof shall contain covenants be determined to be invalid or unenforceable, by reason of Physician-Shareholder whereby they agree not being vague or unreasonable as to compete with Practice within the Practice Territory for one (1) year after termination area, duration or scope of the employment agreementactivity, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed 9(b) shall be considered divisible and shall become and be immediately amended to preserve only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the goodwill of Business Manager court or other body having jurisdiction over the matter; and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or CFO agrees that this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager 7(b) as so amended shall be entitled to enforce this Management Services Agreement by injunctive relief valid and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash binding as though any invalid or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any unenforceable provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceablehad not been included herein.
Appears in 1 contract
Samples: Cfo Employment Agreement (Motivating the Masses Inc)
Noncompetition. Practice hereby recognizes Executive acknowledges and acknowledges that -------------- Business Manager agrees that, in the course of his employment with the Company, he will incur substantial costs in providing have access to and make use of the equipment, support services, personnel, management, administrationCompany's Confidential Information, and other items the Company hereby promises to provide Executive with such Confidential Information, including new Confidential Information not heretofore provided to Executive. To protect and services that are safeguard the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial Company's trade secrets and Confidential Information and the Company's goodwill with its suppliers and customers, which goodwill is a valuable asset of Business Manager the Company, and in consideration of the Company's promise to provide the Executive with Confidential Information and goodwill, the Executive will not, during the Executive's employment with the Company, and for the period thereafter consisting of 24 months, without the prior written consent of the Board of Directors, directly or indirectly, engage in or participate in (as owner, partner, shareholder, employee, director, agent, consultant or otherwise), any business that is a "competitor of the Company" (as hereinafter defined) in any counties in which the Company has operations or has written plans or proposals to establish operations during the Executive's employment with the Company or any counties contiguous to such counties. For purposes of this Employment Agreement, a "competitor of the Company" is any entity, including without limitation, a corporation, sole proprietorship, partnership, joint venture, syndicate, trust or any other Regional Practicesform of organization or a parent, to which Practice would not otherwise be exposedsubsidiary, segment or division of any of the foregoing, which, during such period or the immediately preceding fiscal year of such entity, was principally engaged in the ownership or operation of gas gathering systems, gas treating systems, electric generating facility gas supply laterals or related facilities. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term terms of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice Section 7.3 shall not establish, operate apply to the Executive's present or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement, except future investments in the event Practice terminates this Management Services Agreement for cause pursuant securities of companies listed on a national securities exchange or traded on the over-the-counter market to Section 7.2(b) hereof, Practice shall the extent such investments do not directly or indirectly own (excluding ownership of less exceed five percent (5%) of the equity total outstanding shares of any publicly traded entity)such company. Furthermore, manage, operate, control, or otherwise the terms of this Section 7.3 shall not be associated with, lend funds to, lend its name to, or maintain any interest whatsoever construed to prohibit the Executive from participating in any enterprise (i) having activities that the Executive is expressly authorized to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties participate in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician CauseSection 2.1.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 1 contract
Samples: Employment Agreement (Markwest Energy Partners L P)
Noncompetition. Practice hereby recognizes and The Franchisee acknowledges that -------------- Business Manager that, pursuant to this Agreement, Franchisee will incur substantial costs in providing the equipmentreceive valuable specialized training, support services, personnel, management, administrationconfidential information, and other items trade secrets, including, without limitation, the contents of the Manuals, and services information regarding the operational, sales, promotional, and marketing methods and techniques all of which are owned by Franchisor as part of the System and are collectively hereinafter referred to as "Confidential Information." In consideration for the use and license of the Confidential Information, Franchisee agrees that are it shall not, during the subject matter term of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement and for a period of five one (51) years year from the termination date termination, transfer, or expiration of this Management Services Agreement, except either directly, or indirectly, for itself, or through, on behalf of, or in conjunction with, any person, persons, partnership, or corporation:
(a) divert or attempt to divert any business or customer of the event Practice terminates this Management Services Agreement for cause pursuant Restaurant to Section 7.2(bany competitor, by direct or indirect inducement or otherwise, or do or perform, directly or indirectly, any other act injurious or prejudicial to the goodwill associated with the names and marks and other proprietary rights of Franchisor;
(b) hereofemploy or seek to employ any person who is at the time employed by Franchisor or by another franchisee of Franchisor, Practice shall not or otherwise directly or indirectly own induce any such person to leave his or her employment;
(excluding c) own, maintain, operate, engage in, or have any interest in any business which sells goods or services of a like competitive nature, more specifically, hamburger or chicken sandwich restaurants, and which is located within ten (10) miles of the protected territory of any company-owned or franchised Restaurant. This subsection shall not apply to ownership by Franchisee as a passive investor of less than five percent (5%) of interest in a publicly-held corporation listed on a national stock exchange or traded on the equity of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practiceover-the-counter market. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and Franchisee expressly acknowledges that the provisions in Section 5.6 hereof it possesses skills and this Section 5.7 are designed to preserve the goodwill abilities of Business Manager a general nature and the goodwill of the individual Physicians and Optometrists of Practicehas other opportunities for exploiting such skills. AccordinglyTherefore, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision enforcement of the covenants made by Franchisee herein is held by will not deprive it of its personal goodwill or ability to earn a living. In the event that a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area determines that the provisions of this paragraph 9 are unreasonably broad or restricted activityof unreasonable duration, the covenant restrictions contained in this paragraph shall be reformed reduced to comply with the longest period and the largest geographical area which such time periodcourt deems reasonable under the circumstances. Franchisee will cause its general partners, geographic area or restricted activity that would be held enforceableofficers, directors and management employees to execute non-competition agreements containing the same provisions as those contained in this paragraph 9.
Appears in 1 contract
Noncompetition. Practice hereby recognizes and a. Employee acknowledges that -------------- Business Manager his agreement to forego competition with AGT was a material inducement to AGT to employ him. Employee also acknowledges that he will incur substantial costs in providing the equipmentacquire much Proprietary Information concerning AGT's financial status, support servicescurrent and future marketing and advertising strategies, personnel, management, administrationpricing, and other items and services that are confidential information as the subject matter result of this Management Services Agreement his employment and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and such information is not easily accessible from other Regional Practices, to which Practice would not otherwise be exposedsources. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and Employee further acknowledges that the noncompetition covenants described hereunder businesses in which AGT engages, including but not limited to pre-press and digital archiving are necessary for the protection of Business Managervery competitive; that competition by him in those businesses during his employment, or after his employment terminates, would severely injure AGT; and that Business Manager would not have entered into this Management Services Agreement without the following covenants:his agreements herein are demonstrably necessary to protect those legitimate interests.
(a) b. During the Term term of this Management Services his employment with AGT, Employee (i) will devote all his professional and business time and effort to and give undivided loyalty to AGT and (ii) will not engage in any way whatsoever, directly or indirectly, in any business that is competitive with AGT, nor directly or indirectly solicit or in any other manner work for or assist any business which is competitive with AGT. 9 c. The "Restricted Period" shall mean the period beginning on the Commencement Date of the Employment Agreement and except for ending on the performance later of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement second anniversary thereof or as expressly agreed six months after Employee's employment is terminated. Notwithstanding the foregoing, the Restricted Period shall terminate immediately if the Employee's employment is terminated pursuant to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within Paragraph 7(b) of the Practice TerritoryEmployment Agreement. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated byRestricted Period, Employee shall not, whether alone or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at association with any other office or facility.
(b) Except as specifically agreed to by Business Manager in writingperson, Practice commits and agrees that during the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%i) engage in any business in the Specified Areas that is competitive with any aspect of the equity business that is being conducted or planned by AGT at the time Employee's employment with AGT terminates; or (ii) have any interest or association (including, without limitation, as a shareholder, partner, director, officer, employee, consultant, sales representative, supplier, distributor, agent or lender) in or with any person engaged in a business in the Specified Areas that Employee is prohibited from engaging in pursuant to clause (i) above; provided however, that the foregoing shall not prohibit Employee from owning securities of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever company that is engaged in any enterprise (i) having to do with the provision, distribution, promotion such business as long as Employee does not own at any time 5% or advertising more of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination class of the employment agreement, except in the event Physician terminates equity securities of such agreement for Physician Cause or certain buyout rights are exercisedcompany.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 1 contract
Samples: Employment Agreement (Applied Graphics Technologies Inc)
Noncompetition. Practice hereby recognizes and The Employee acknowledges that -------------- Business Manager will incur substantial costs in providing (i) the equipment, support services, personnel, management, administration, and other items and Employee performs services of a unique nature for the Company that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Managerirreplaceable, and that Business Manager the Employee’s performance of such services to a competing business will result in irreparable harm to the Company, (ii) the Employee has had and will continue to have access to Confidential Information which, if disclosed, would not unfairly and inappropriately assist in competition against the Company or any of its affiliates, (iii) in the course of the Employee’s employment by a competitor, the Employee would inevitably use or disclose such Confidential Information, (iv) the Company and its affiliates have entered into this Management Services Agreement without substantial relationships with their customers and the following covenants:
Employee has had and will continue to have access to these customers, (av) During the Term of this Management Services Agreement Employee has received and except will receive specialized training from the Company and its affiliates, and (vi) the Employee has generated and will continue to generate goodwill for the performance of Medical Services Company and ancillary services at its affiliates in the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation course of the Dispensary Business at Offices contemplated byEmployee’s employment. Accordingly, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement Employee’s employment hereunder and for a period of five one (51) years from year thereafter, the termination date of this Management Services AgreementEmployee agrees that the Employee will not, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity)indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise be associated withotherwise, lend funds toand whether or not for compensation) or render services to any person, lend firm, corporation or other entity, that is, in whatever form, either directly or indirectly through its name toaffiliates, engaged, or maintain any seeking to acquire a controlling interest whatsoever in any enterprise (i) having to do with the provisionanother person, distributionfirm corporation or entity that is engaged, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering the Company or any type of service its subsidiaries or product in any other material business in which the Practice Territory to third parties similar to those offered by Business Manager to PracticeCompany or any of its subsidiaries is engaged on the date of termination, in any locale of any country in which the Company conducts business. Notwithstanding the above restrictionforegoing, nothing herein shall prohibit Practice the Employee from being a passive owner of not more than one percent (1%) of the equity securities of a publicly traded corporation engaged in a business that is in competition with the Company or any of its holders from providing management and administrative services to its subsidiaries or their own medical practices after affiliates, so long as the termination Employee has no active participation in the business of such corporation. In addition, the provisions of this Management Services AgreementSection 10(b) shall not be violated by the Employee commencing employment with a subsidiary, division or unit of any entity that engages in a business in competition with the Company or any of its subsidiaries so long as the Employee and such subsidiary, division or unit does not engage in a business in competition with the Company or any of its subsidiaries.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 1 contract
Noncompetition. Practice hereby recognizes Executive acknowledges and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize agrees that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time insurance business and attention. Practice agrees and acknowledges that operations of the noncompetition covenants described hereunder Company are necessary for the protection of Business Managernational in scope, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During Company operates in multiple locations and business segments in the Term course of conducting its business. In consideration of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed equity interests being made available to by Business Manager in writingExecutive hereunder, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits Executive covenants and agrees that during his/her employment with the Term of this Management Services Agreement Company, and for a period of five (5) years months following the termination of such employment for any reason, unless if the termination entitles the Executive to receive Severance Benefits from the Company under Section 3.01, in which case such period shall be months (such period, the “Restrictive Period”), Executive shall not (i) engage, whether as owner, manager, operator or otherwise, directly or indirectly, in any property and/or casualty insurance company (or holding company which controls such company) that is based in the United States or does a substantial amount of its business in the United States and that writes more than 15% of its written premium by issuing commercial insurance policies for businesses through a network of wholesale general agents on a binding authority basis; provided however that the restrictions herein shall not prohibit or prevent Executive from acting as an owner, manager, operator or employee of any wholesale general agent, (ii) use any information obtained in the course of Executive’s employment by the Company for the purpose of notifying individuals of Executive’s willingness to provide services after such termination date in competition with the Company or in breach of this Management Services Agreement, except in or (iii) otherwise solicit for competitive purposes any person who is, or at any time during the event Practice terminates this Management Services Agreement for cause term of Executive’s employment by the Company was, a customer of the Company; provided that Executive shall not be subject to the above restrictions if the Company fails to pay (i) Severance Benefits due to Executive, if any, pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own 3.01 (excluding ownership other than as provided for under Section 3.06.3). Ownership of less five percent (than 5%) % of the equity securities of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practicecompany will not violate this Section 4.02. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in In the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover be determined by any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive in part by reason of its being too great a period of time periodor covering too great a geographical area, geographic area or restricted activity, the covenant it shall be reformed in full force and in effect as to comply with such that period of time period, geographic or geographical area or restricted activity that would determined to be held enforceablereasonable by the court.
Appears in 1 contract
Samples: Executive Employment Agreement (Penn America Group Inc)
Noncompetition. Practice hereby recognizes During the Employment Period and acknowledges that -------------- Business Manager will incur substantial costs for two (2) years thereafter, Executive shall not engage in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter Competition (as defined below) with RWB or any of its Affiliates. The term “Competition” for purposes of this Management Services Agreement and that shall mean the taking of any of the following actions by Executive in any state in the process of providing services under this Management Services AgreementUnited States where Platinum Vape operates: (i) the conduct of, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership including, without limitation, engaging in, assisting or performing services for), any business that engages in any activity which is directly competitive with the business of less five percent (5%) of the equity Platinum Vape, whether such business is conducted by Executive individually or as principal, partner, officer, director, consultant, security holder, creditor, employee, stockholder, member or manager of any publicly traded person, partnership, corporation, limited liability company or any other entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering ownership of interests in any type of service business which is competitive, directly or product in the Practice Territory to third parties similar to those offered indirectly, with any business carried on by Business Manager to PracticePlatinum Vape (or any successor thereto) or its Affiliates. Notwithstanding the above restrictionforegoing, nothing herein shall prohibit Practice it is specifically agreed that Executive may devote time and attention to other activities that do compete with Platinum Vape outside the states in which it operates or those that do interfere with his obligations, duties and responsibilities to Platinum Vape (e.g. Executive may (A) own and rent real estate used for any purpose; (B) own or operate cannabis businesses that do not manufacture or distribute cannabis vape products, license technology, brands, processes or any of its holders from providing management and administrative other intellectual property involving cannabis vape products or provide services to its any person or their entity involving cannabis vape products in states where Platinum Vape has operations; or (C) own medical practices after or operate any non-cannabis business in any jurisdiction). Notwithstanding the termination of this Management Services Agreement.
foregoing, RWB agrees that Executive may directly or through his Affiliates (ci) The written Employment Agreements described own the Chula Vista Property referenced in Section 5.1 hereof shall contain covenants 10 of Physician-Shareholder whereby they agree not Executive’s Employment Agreement with RWB, lease or sell the Chula Vista Property to compete a business that competes with Practice within Platinum Vape and RWB; provided that Executive is unaffiliated with the Practice Territory lessee/buyer, and license or sell the cannabis license/entitlements being applied for one by C.S. Designs, Inc., a California corporation, for the Chula Vista Property, each subject to RWB’s election to have Platinum Vape occupy the Chula Vista Property in accordance with Section 10 of Executive’s Employment Agreement with RWB, and (1ii) year after termination of own the employment agreementreal property located at 00000 Xxxxxxx Xx, except in Xxxxx 000, Xxxx Xxxxxxxx, XX (the event Physician terminates such agreement “Lake Elsinore Property”), lease, license or sell the Lake Elsinore Property to a business that competes with Platinum Vape and/or RWB; provided that Executive is unaffiliated with the lessee/buyer, license or sell the cannabis license/CUP/ entitlements being applied for Physician Cause or certain buyout rights by Vista Prime Management, LLC, a California limited liability company, for the Lake Elsinore Property that are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due transferred to an excessive time periodAffiliate of Executive, geographic area and operate a cannabis micro business at the Lake Elsinore Property; provided such business does not include the manufacture or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceabledistribution of cannabis vape products (retail sales of cannabis vape products are permitted).
Appears in 1 contract
Samples: Securities Purchase Agreement (Red White & Bloom Brands Inc.)
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager A. The Executive agrees that, except in accordance with his duties under this Agreement on behalf of the Company, he will incur substantial costs in providing not during the equipment, support services, personnel, management, administration, and other items and services that are the subject matter term of this Management Services Agreement and that Agreement: Participate in, be employed in any capacity by, serve as director, consultant, agent or representative for, or have any interest, directly or indirectly, in any enterprise which is engaged in the process business of providing distributing, selling or otherwise trading in products or services under this Management Services Agreementwhich are competitive to any products or services distributed, Practice will be privy to financial and Confidential Information sold or otherwise traded in by the Company or any of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that its subsidiaries during the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation term of the Dispensary Business at Offices contemplated byExecutive's employment with the Company, or subject towhich are competitive to any products or services being actively developed, this Management Services Agreement with the bona fide intent to market same, by the Company or as expressly agreed to by Business Manager in writingany of its subsidiaries during the term of the Executive's employment with the Company; In addition, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and the Executive agrees that during the Term of this Management Services Agreement and for a period of five (5) two years from after the termination date end of the term of this Management Services Agreement, except in Agreement (unless the event Practice terminates Company breaches this Management Services Agreement for cause pursuant by failing to Section 7.2(b) pay to the Executive all sums due him under the terms hereof, Practice in which event the following provisions of this Section 15.A shall be inapplicable), the Executive shall observe the covenants set forth in this Section 15 and shall not own, either directly or indirectly own (excluding ownership or through or in conjunction with one or more members of less his or his spouse's family or through any trust or other contractual arrangement, a greater than five percent (5%) of the equity of any publicly traded entity), manage, operate, controlinterest in, or otherwise be associated withcontrol either directly or indirectly, lend funds toany partnership, lend its name tocorporation, or maintain other entity which distributes, sells, or otherwise trades in products which are competitive to any interest whatsoever products or services being developed, distributed, sold, or otherwise traded in any enterprise (i) having to do with by the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice Company or any of its holders from providing management and administrative services to its or their own medical practices after subsidiaries, during the termination term of this Management Services Agreement, or being actively developed by the Company or any of its subsidiaries during the term of this Agreement with the Company with a bona fide intent to market same. Executive further agrees, for such two year period following termination, to refrain from directly or indirectly soliciting Company's vendors, customers or employees, except that the Executive may solicit the Company's vendors or customers in connection with a business that does not compete with the Company or any of its subsidiaries.
(c) B. The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not Executive hereby agrees that damages and any other remedy available at law would be inadequate to compete with Practice within redress or remedy any loss or damage suffered by the Practice Territory for one (1) year after termination Company upon any breach of the employment agreementterms of this Section 15 by the Executive, except in and the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges Executive therefore agrees that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7Company, in addition to recovering on any claim for damages or obtaining any other remedies remedy available under at law, also may enforce the terms of this Management Services Agreement at law section 15 by injunction or specific performance, and may obtain any other appropriate remedy available in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 1 contract
Noncompetition. Practice hereby recognizes and In consideration for the Option referenced above in Section 5, Executive acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and (i) Executive performs services of a unique nature for Cue that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Managerirreplaceable, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the Executive’s performance of Medical Services and ancillary such services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager a competing business shall result in writingirreparable harm to Cue, Practice shall not establish, operate or provide Medical Services at (ii) Executive is a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation member of the Dispensary Business at Offices contemplated bymanagement personnel of Cue, (iii) Executive has had and will continue to have access to Confidential Information and trade secrets which, if disclosed, would unfairly and inappropriately assist in competition against Cue, (iv) in the course of Executive’s employment by a competitor, Executive would inevitably use or subject todisclose such Confidential Information and trade secrets, this Management Services Agreement (v) Cue has substantial relationships with its customers and Executive has had and will continue to have access to these customers, (vi) Executive has received and will receive specialized experience and training from Cue and (vii) Executive has generated and will continue to generate goodwill for Cue in the course of Executive’s employment. Accordingly, during Executive’s employment with Cue or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement its Affiliates and for a period of five (5) years from the termination date of this Management Services Agreement, 12 months thereafter except in the event Practice terminates case of (i) Executive’s termination by the Company without Cause or (ii) Executive’s inclusion in a Company reduction in force or layoff, in which case this Management Services Agreement for cause pursuant to Section 7.2(b10(b) hereof, Practice shall not apply, Executive shall not, directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity)indirectly, own, manage, operate, control, be employed by or otherwise be associated withrender services to (whether as an employee, lend funds toconsultant, lend independent contractor or otherwise, and whether or not for compensation, in each case in the capacity or any substantially similar capacity that Executive rendered services to Cue or its name toAffiliates) any person or entity, in whatever form, that is substantially similar to or maintain any interest whatsoever competes with the Business (as defined below) in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative jurisdiction in which Executive performed services or products had a material presence or influence on behalf of the Company. For purposes of this Agreement, “Business” means the development of drug candidates utilizing Fc-fusion proteins that incorporate peptide-HLA complexes along with different activating and/or inhibitory signals to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practicetarget antigen-specific T cells. Notwithstanding the above restrictionforegoing, nothing herein shall prohibit Practice Executive from (x) being a passive owner of not more than 1% of the equity shares of a publicly-traded corporation engaged in the Business or any of its holders from providing management and administrative (y) becoming employed by or rendering services to its (as an independent contractor, consultant or their own medical practices after otherwise) an entity that engages in the termination Business as long as Executive has no direct involvement in the business unit or division of this Management Services Agreement.
(c) The written Employment Agreements described such entity that engages in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination Business and the revenues such entity receives from the Business represent in the aggregate less than 10% of the employment agreement, except in the event Physician terminates revenue of such agreement for Physician Cause or certain buyout rights are exercisedentity.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 1 contract
Samples: Executive Employment Agreement (Cue Biopharma, Inc.)
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During Employee covenants that at all times during the Term period of this Management Services Agreement his employment and except for a period of one year immediately following the performance termination thereof for any reason, he will not, without the prior written consent of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writingCompany, Practice which consent shall not establishbe unreasonably withheld, operate for a period of one year following his date of termination, either individually or provide Medical Services at in partnership or jointly or in conjunction with any person as principal, agent, employee, shareholder (other than by way of holding shares listed on a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation stock exchange in a number not exceeding five percent of the Dispensary Business at Offices contemplated outstanding class or series of shares so listed) or in any other manner whatsoever carry on, be engaged in, be concerned with or be interested in, or advise, lend money to, guarantee the debts or obligations of or permit his name or any part thereof to be used or employed by, any person engaged in or subject toconcerned with or interested in, this Management Services Agreement any business in competition with the business carried on by Company or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate any of its subsidiaries or engage in a Dispensary Business at any other office or facilityaffiliates.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits Employee hereby covenants and agrees that that, at all times during the Term period of this Management Services Agreement his employment and for a period of five (5) years from one year immediately following the termination date of this Management Services Agreementthereof for any reason, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice Employee shall not directly employ or indirectly own (excluding ownership of less five percent (5%) of the equity of seek to employ any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered person employed at that time by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice Company or any of its holders from providing management and administrative services subsidiaries or its affiliates who is engaged in or concerned with or interested in, any business in competition with the business carried on by Company or any of its subsidiaries or affiliates, or otherwise encourage or entice such person or entity to its or their own medical practices after the termination of this Management Services Agreementleave such employment.
(c) The written Employment Agreements described Employee hereby covenants and agrees that to the extent that he receives compensation or benefits from other employment, the payments to be made and the benefits to be provided by the Company shall, to the extent permitted under applicable law, be correspondingly reduced, if such compensation or benefits are earned through competing activity as defined in this Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised7.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in It is the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination intention of the employment agreementparties hereto that the restrictions contained in this Section 7 be enforceable to the fullest extent permitted by applicable law. Therefore, except in to the event Physician terminates extent any court of competent jurisdiction shall determine that any portion of the foregoing restrictions is excessive, such agreement for Physician Causeprovision shall not be entirely void, but rather shall be limited or revised only to the extent necessary to make it enforceable.
(e) Practice understands and acknowledges Employee confirms that the provisions all restrictions in Section 5.6 hereof and this Section 5.7 7 are designed reasonable and valid and all defenses to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement strict enforcement thereof by injunctive relief and Company are hereby waived by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceableEmployee.
Appears in 1 contract
Noncompetition. Practice hereby recognizes and The Executive acknowledges that -------------- Business Manager will incur substantial costs in providing (i) the equipment, support services, personnel, management, administration, and other items and Executive performs services of a unique nature for the Company that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Managerirreplaceable, and that Business Manager the Executive’s performance of such services to a competing business will result in irreparable harm to the Company, (ii) the Executive has had and will continue to have access to confidential information which, if disclosed, would not have entered into this Management Services Agreement without unfairly and inappropriately assist in competition against the following covenants:
Company or any of its Subsidiaries (a) During the Term for purposes of this Management Services Agreement Agreement, “Subsidiaries” shall mean any corporation or other entity of which the securities or other ownership interests having the voting power to elect a majority of the board of directors or other governing body are, at the time of determination, owned by the Company, directly or through one or more Subsidiaries), (iii) the Company and except its Subsidiaries have substantial relationships with their customers, and the Executive will have access to these customers during the Employment Period, (iv) the Executive has generated and will continue to generate goodwill for the performance of Medical Services Company and ancillary services at its Subsidiaries in the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation course of the Dispensary Business at Offices contemplated byExecutive’s employment. Accordingly, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement Executive’s employment hereunder and for a period of five two (52) years from thereafter, the termination date of this Management Services AgreementExecutive agrees that the Executive will not, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity)indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise be associated withotherwise, lend funds toand whether or not for compensation) or render services to any person, lend its name tofirm, corporation or other entity, in whatever form, materially engaged in the competitive business of selling or distributing the following products manufactured by third parties (x) printing and specialty papers, (y) packaging supplies and equipment, or maintain any interest whatsoever (z) as it relates to printing and specialty papers, industrial and commercial maintenance supplies or graphic imaging supplies and equipment (collectively, the “Restricted Business”), in any enterprise (i) having locale of any country in which the Company conducts such business. Notwithstanding the foregoing, the Company agrees that customers and suppliers of the Company are not deemed to do be competitive with the provisionCompany merely based upon such status. The Company also agrees that the Executive is not otherwise restricted by the foregoing after the Employment Term to the extent that the Restricted Business is incidental to the business engaged in by such firm, distributioncorporation or entity (e..g., promotion Amazon) and the Executive is not directly involved in the Restricted Business of such firm, corporation, or advertising entity. Nothing herein shall prohibit the Executive from being a passive owner of any type not more than one percent (1%) of management or administrative services or products to third parties the equity securities of a publicly traded corporation engaged in a business that is in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice Company or any of its holders from providing management and administrative services to its or their own medical practices after Subsidiaries, so long as the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except Executive has no active participation in the event Physician terminates business of such agreement for Physician Cause or certain buyout rights are exercisedcorporation.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 1 contract
Samples: Employment Agreement (Veritiv Corp)
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement Employment Period and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement Severance Period and for a period of five two (52) years from following the termination date later of this Management Services Agreementthe Termination Date or the last day of any Severance Period, except the Executive will not, directly or indirectly, engage in, or have any interest in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereofany sole proprietorship, Practice shall not partnership, corporation, limited liability company or business or any other Person, whether as an employee, officer, director, partner, agent, security holder, consultant or otherwise, that directly or indirectly own (excluding ownership of less five percent (5%) of engages in the equity of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever Restricted Business in any enterprise (i) having to do with geographic area in which the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice Company or any of its holders from providing management Subsidiaries or Affiliates, directly or indirectly, engaged in the Restricted Business as of the Termination Date and administrative services to its or their own medical practices after during the termination of this Management Services Agreement.
two (c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (12) year after termination of period before the employment agreementTermination Date (the “Restricted Area”); provided, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2Ahowever, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph Section 3.4 shall limit Business Manager's right be deemed to recover any other damages to which it is entitled prevent the Executive from acquiring through market purchases and owning, solely as a result of Practice's breach. If any provision an investment, less than three percent (3%) in the aggregate of the covenants herein equity securities of any class of any issuer whose shares are registered under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, and are listed or admitted for trading on any United States national securities exchange or are quoted on the National Association of Securities Dealers Automated Quotations System, or any similar system of automated dissemination of quotations of securities prices in common use, so long as the Executive is held by not a court member of competent jurisdiction to any “control group” (within the meaning of the rules and regulations of the United States Securities and Exchange Commission) of any such issuer. For purposes of this Agreement, “Restricted Business” shall mean the business of the Company and its Affiliates, as such business may be unenforceable due to an excessive time periodexpanded or altered during the Term, geographic area or restricted activityincluding, without limitation, the covenant shall be reformed to comply with such time periodbusiness of (i) procuring, geographic area delivering and otherwise managing the inventory of chemicals for or restricted activity that would be held enforceableon behalf of any Person, training and managing the waste produced by other Persons or providing services ancillary thereto, including process improvement, consultation, environmental health and safety compliance or waste handling services, or (ii) providing inventory management services and the purchase and distribution of aerospace parts, machined parts, electrical components, bearings, and fastener installation tooling.
Appears in 1 contract
Samples: Employment Agreement (Wesco Aircraft Holdings, Inc)
Noncompetition. Practice hereby recognizes During the term of Employee's employment with the Company and acknowledges that -------------- Business Manager for a [FOR MR. XXXXXXXX XXXY: two][FOR THE OTHER EXECUTIVE OFFICERS: one] year period thereafter (unless Employee's employment is terminated pursuant to [FOR MR. XXXXXXXX: Xxctions 3(a)(i) or 3(b)(ii), in which case the noncompete period shall be for one year)][FOR THE OTHER EXECUTIVE OFFICERS: Section 3(b)(iv))], Employee will incur substantial costs in providing not, directly or indirectly, within the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants Territory described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenantsbelow:
(a) During engage in, continue in or carry on any business which competes with the Term of this Management Services Agreement and except for business conducted by the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement Company, including owning or as expressly agreed to by Business Manager controlling any financial interest in writingany corporation, Practice shall not establishpartnership, operate or provide Medical Services at a medical office, clinic firm or other health care facility anywhere within the Practice Territory. During the Term form of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.business organization which is so engaged;
(b) Except consult with, advise or assist in any way, whether or not for consideration, any corporation, partnership, firm or other business organization which is a competitor of the Company in any aspect with respect to the business conducted by the Company including, but not limited, to, advertising or otherwise endorsing the products of any such competitor; soliciting customers or otherwise serving as specifically agreed an intermediary for any such competitor; loaning money or rendering any other form of financial assistance to by Business Manager or engaging in writingany similar form of business transaction with any such competitor; provided, Practice commits and agrees that during however, the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant foregoing prohibition does not extend to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding passive ownership of less five percent (5%) than 1% of the equity outstanding stock of any publicly entity whose stock is traded entity)on an established stock exchange or quoted on NASDAQ. For purposes hereof, manage"Territory" is defined as any county or similar geographic subdivision in which Company conducts business. The parties intend that this noncompete covenant shall be construed as separate covenants, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having one for each county and subdivision to do with which the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practicecovenant applies. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in In the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction determines that the provisions of this covenant not to compete are excessively broad as to duration, geographic scope or activity, it is expressly agreed that this covenant not to compete shall be construed so that the remaining provisions shall not be affected, but shall remain in full force and effect, and any such over broad provisions shall be deemed, without further action on the part of any person, to be unenforceable due modified, amended and/or limited, but only to an excessive time period, geographic area or restricted activity, the covenant shall be reformed extent necessary to comply with render the same valid and enforceable in such time period, geographic area or restricted activity that would be held enforceablejurisdiction.
Appears in 1 contract
Noncompetition. Practice hereby recognizes Employee and acknowledges the Company recognize that -------------- Business Manager Employee's duties will incur substantial costs in providing entail the equipmentreceipt of trade secrets and confidential information, support serviceswhich include not only information concerning the Company's current operations, personnelprocedures, managementsuppliers and other contacts, administrationbut also its short-range and long-range plans, and other items that such trade secrets and services that are confidential information may have been developed by the subject matter Company and its Affiliates at substantial cost and constitute valuable and unique property of this Management Services Agreement and that in the process of providing services under this Management Services AgreementCompany. Accordingly, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and Employee acknowledges that the noncompetition covenants described hereunder are foregoing makes it reasonably necessary for the protection of Business Manager, and the Company's business interests that Business Manager would Employee not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do compete with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice Company or any of its holders from providing management Affiliates during the term of this Agreement and administrative that, for a reasonable and limited period thereafter, the Employee not compete with the Company or any of its Affiliates in the same geographic area in which the Employee performs his services for the Company at the time of his termination of employment with the Company. Therefore, (a) during the term of this Agreement, Employee shall not (i) render personal services to its any Competing Business in any manner, including, without limitation, as owner, partner, director, trustee, officer, employee, consultant or their own medical practices advisor thereof ("Personal Services") or (ii) have any investment in a Competing Business other than a DE MINIMIS investment and (b) for two years after the Employee's termination of this Management employment, Employee shall not (i) render Personal Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants to any Competing Business within a 25 mile radius of Physicianthe Company-Shareholder whereby they agree not owned site to compete with Practice within which Employee regularly reported at the Practice Territory for one (1) year after time of Employee's termination of employment with the employment agreementCompany or (ii) have any investment in a Competing Business other than a DE MINIMIS investment. For purposes of the preceding sentence, except a DE MINIMIS investment is ownership of less than 1/2 of 1% of the outstanding equity or debt of any Competing Business. Notwithstanding anything herein to the contrary, if Employee shall breach the covenants contained in this Article III, the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice Company shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, have no further obligations to Employee pursuant to ------------ this Agreement and may recover from Employee all such damages to which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement it may be entitled at law or in equity. In addition, Business Manager shall Employee acknowledges that any such breach is likely to result in immediate and irreparable harm to the Company for which money damages are likely to be entitled inadequate. Accordingly, Employee consents to enforce injunctive and other appropriate equitable relief that the Company may seek to protect the Company's rights under this Management Services Agreement by injunctive Agreement. Such relief and by specific performance may include, without limitation, an injunction to prevent Employee from disclosing any trade secrets or confidential information concerning the Company to any Entity, to prevent any Entity from receiving from Employee or using any such trade secrets or confidential information and/or to prevent any Entity from retaining or seeking to retain any other employees of the Management Services Agreement, such relief to be without Company. Employee acknowledges good and sufficient consideration for the necessity noncompetition and nonsolicitation covenants of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceableSection.
Appears in 1 contract
Noncompetition. Practice hereby recognizes and The Executive acknowledges that -------------- Business Manager will incur substantial costs in providing (i) the equipment, support services, personnel, management, administration, and other items and Executive performs services of a unique nature for the Company that are the subject matter of this Management Services Agreement irreplaceable and that the Executive’s performance of such services to a competing business will result in irreparable harm to the Company; (ii) the Executive has had and will continue to have access to Confidential Information, which, if disclosed, would unfairly and inappropriately assist in competition against the Company or any of its subsidiaries; (iii) in the process course of providing services under this Management Services Agreementemployment by a competitor, Practice the Executive would inevitably use or disclose such Confidential Information; (iv) the Company and its subsidiaries have substantial relationships with their customers and the Executive has had and will be privy continue to financial have access to these customers; (v) the Executive has received and Confidential Information of Business Manager will receive specialized training from the Company and other Regional Practices, its subsidiaries; and (vi) the Executive has generated and will continue to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary generate goodwill for the protection Company and its subsidiaries in the course of Business Manageremployment. Accordingly, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Employment Term of this Management Services Agreement and for a period of five one year thereafter (5) years from the termination date of this Management Services Agreement“Restricted Period”), except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereofExecutive agrees that the Executive will not, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity)indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise be associated withotherwise, lend funds toand whether or not for compensation) or render services to any person, lend its name tofirm, corporation or maintain any interest whatsoever other entity, in whatever form, engaged in any enterprise business activities related to the Business (ias defined below) having to do with the provisionin any basins, distributioncounties or parishes (including De Xxxx, promotion or advertising Natchitoches, Red River, Sabine and Xxxxxxx parishes) of any type country in which the Company conducts the Business. Notwithstanding the foregoing, nothing herein prohibits the Executive from being a passive owner of management or administrative services or products to third parties not more than 1% of the equity securities of a publicly traded corporation engaged in a business that is in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice Company or any of its holders from providing management and administrative services to its or their own medical practices after subsidiaries, so long as the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except Executive has no active participation in the event Physician terminates business of such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists corporation. Notwithstanding anything contained in the form of Exhibit 5.2A, pursuant this Agreement or any agreement to ------------ which the employees agree not to compete with Practice within Executive is a party or by which the Practice Territory for one (1) year after termination of the employment agreementExecutive may be bound, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall 10(b) will be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed limited to comply with such time periodRule 5.06(a) of the Texas Disciplinary Rules of Professional Conduct or other similar applicable law or ethical or professional rules or restrictions. For purposes of this agreement, geographic area or restricted activity that would be held enforceable“Business” means the business related to oil and gas exploration and development.
Appears in 1 contract
Noncompetition. Practice hereby recognizes and acknowledges (a) Executive understands that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional PracticesExecutive’s work and experience with Company has and will continue to enhance Executive’s value not only to Company, but also to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Managerits competitors, and that Business Manager would the nature of the Confidential Information to which Executive shall and will have access will make it difficult, if not have entered into impossible, for Executive to work for a competitor or for any other company which competes with the Company’s business, and for whom Executive, while employed by Company, has performed services within twenty four months prior to the date of Executive’s termination without disclosing or utilizing the Confidential Information to which he has had access during the course of Executive’s employment. Executive further acknowledges and agrees that Company’s agreement to impart to and to provide Executive with access to its Confidential Information is ancillary to and contingent upon Executive’s agreement and that he will not during Executive’s employment and for a period of two years immediately following Executive’s last day of employment with Company or two years from the date of any court order enforcing all or part of this Management Services Agreement without Agreement, whichever is later (the following covenants:“Non-Compete Period”):
(ai) During carry on, initiate or have any ownership interest (directly or indirectly) in any business that services, or distributes services similar to those of Company or its affiliates, successors or assigns or that otherwise competes with Company or its affiliates, successors or assigns provided that this provision shall not apply to the Term ownership by Executive of this Management Services Agreement less than 5% of a class of publicly traded equity securities;
(ii) become employed by, derive benefit from or otherwise provide services for compensation (whether as an owner, partner, consultant, employee or otherwise) or divert Company’s business to any person or entity that is a Major Competitor (as defined below) of Company or its affiliates, successors or assigns, or any other business in which Company maintains customers or engages in business and except for whom Executive, while employed by Company, has performed services within twenty four months prior to the date of Executive’s separation; or
(iii) contact, solicit, or divert (directly or indirectly), for the performance purpose of Medical Services and ancillary attempting to enter into a business relationship related to the distribution or services at provided by Company or its subsidiaries, affiliates, successors or assigns any customer with whom Company has had a contractual relationship during the Office as contemplated by this Management Services Agreement or as expressly agreed two year period prior to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term Executive’s last day of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facilityemployment with Company.
(b) Except as specifically agreed Company’s business includes, without limitation, horizontal, directional and measurement while drilling services to by Business Manager in writing, Practice commits the oil and agrees that during the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) gas industry. This description of the equity business, both actual and intended, is not intended to be limiting. The business will continue to grow and evolve and the range of any publicly traded entity), manage, operate, control, or otherwise services and the ways of providing services will continue to be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management enhanced and administrative services to its or their own medical practices after the termination of this Management Services Agreementsupplemented.
(c) The written Employment Agreements described in Section 5.1 hereof If any part of this provision is held unenforceable or invalid, the remaining parts thereof shall contain covenants of Physician-Shareholder whereby they agree not continue to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercisedbe enforceable.
(d) Practice shall Executive acknowledges and agrees that Executive’s signing of and compliance is a condition of Executive’s employment. Executive acknowledges and agrees that the scope of this Agreement and promises herein are reasonable as to time, area and scope of activity restrained and are necessary to protect Company’s legitimate business interests. Specifically, Executive has considered this Agreement and the promises Executive has made in light of the benefits that Executive has and will continue to obtain and enforce formal written has concluded that the promises and agreements leave Executive with Physician-Employees a reasonable number and Optometrists variety of permitted avenues for engaging in employment in a number of locations and a number of occupations during the form period of Exhibit 5.2Arestriction. If the provisions of this Section 10 pertaining to time, pursuant geographic area, and scope are deemed unenforceable by a court of competent jurisdiction, then such provision shall include the maximum time, geographic area, and scope which a court of competent jurisdiction determines to ------------ which be reasonable, valid, and enforceable. To the employees agree not to compete with Practice within extent that the Practice Territory for one (1) year after termination court permits bluepenciling of the employment non-competition agreement, except in the event Physician terminates such agreement for Physician Causeparties intend that the court will take all action necessary to revise it and those provisions necessary to it so as to create a binding and enforceable provision.
(e) Practice understands Major Competitor shall include, without limitation, (i) all entities which are in the same or a similar business to that of Company, its affiliates, successors or assigns and/or which offer a service and/or product the same or similar to any service and/or product offered or in the process of being developed or offered by Company, its subsidiaries, affiliates, successors or assigns and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill (ii) all of the individual Physicians following entities and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, their respective successors in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.interest: Bxxxx Hxxxxx Inteq; Schlumberger (Anadrill); Pathfinder; Scientific Drilling; Wxxxxxxxxxx International
Appears in 1 contract
Samples: Executive Employment Agreement (Allis Chalmers Energy Inc.)
Noncompetition. Practice hereby recognizes and acknowledges (a) Executive understands that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional PracticesExecutive’s work and experience with Company has and will continue to enhance Executive’s value not only to Company, but also to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Managerits competitors, and that Business Manager would the nature of the Confidential Information to which Executive shall and will have access will make it difficult, if not have entered into impossible, for Executive to work for a competitor or for any other company which competes with the Company’s business, and for whom Executive, while employed by Company, has performed services within twenty four months prior to the date of Executive’s termination without disclosing or utilizing the Confidential Information to which he has had access during the course of Executive’s employment. Executive further acknowledges and agrees that Company’s agreement to impart to and to provide Executive with access to its Confidential Information is ancillary to and contingent upon Executive’s agreement and that he will not during Executive’s employment and for a period of two years immediately following Executive’s last day of employment with Company or two years from the date of any court order enforcing all or part of this Management Services Agreement without Agreement, whichever is later (the following covenants:“Non-Compete Period”):
(ai) During carry on, initiate or have any ownership interest (directly or indirectly) in any business that services, or distributes services similar to those of Company, successors or assigns or that otherwise competes with Company, successors or assigns provided that this provision shall not apply to the Term ownership by Executive of this Management Services Agreement less than 5% of a class of publicly traded equity securities;
(ii) become employed by, derive benefit from or otherwise provide services for compensation (whether as an owner, partner, consultant, employee or otherwise) or divert Company’s business to any person or entity that is a Major Competitor (as defined below) of Company or any other business in which Company maintains customers or engages in business and except for whom Executive, while employed by Company, has performed services within twenty four months prior to the date of Executive’s separation; or
(iii) contact, solicit, or divert (directly or indirectly), for the performance purpose of Medical Services and ancillary attempting to enter into a business relationship related to the distribution or services at provided by Company or its subsidiaries, successors or assigns any customer with whom Company has had a contractual relationship during the Office as contemplated by this Management Services Agreement or as expressly agreed two year period prior to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term Executive’s last day of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facilityemployment with Company.
(b) Except as specifically agreed Company’s business includes, without limitation, underbalanced drilling and products and services for underbalanced drilling and workover application services to by Business Manager in writing, Practice commits the oil and agrees that during the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) gas industry. This description of the equity business, both actual and intended, is not intended to be limiting. The business will continue to grow and evolve and the range of any publicly traded entity), manage, operate, control, or otherwise services and the ways of providing services will continue to be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management enhanced and administrative services to its or their own medical practices after the termination of this Management Services Agreementsupplemented.
(c) The written Employment Agreements described in Section 5.1 hereof If any part of this provision is held unenforceable or invalid, the remaining parts thereof shall contain covenants of Physician-Shareholder whereby they agree not continue to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercisedbe enforceable.
(d) Practice shall Executive acknowledges and agrees that Executive’s signing of and compliance is a condition of Executive’s employment. Executive acknowledges and agrees that the scope of this Agreement and promises herein are reasonable as to time, area and scope of activity restrained and are necessary to protect Company’s legitimate business interests. Specifically, Executive has considered this Agreement and the promises Executive has made in light of the benefits that Executive has and will continue to obtain and enforce formal written has concluded that the promises and agreements leave Executive with Physician-Employees a reasonable number and Optometrists variety of permitted avenues for engaging in employment in a number of locations and a number of occupations during the form period of Exhibit 5.2Arestriction. If the provisions of this Section 10 pertaining to time, pursuant geographic area, and scope are deemed unenforceable by a court of competent jurisdiction, then such provision shall include the maximum time, geographic area, and scope which a court of competent jurisdiction determines to ------------ which be reasonable, valid, and enforceable. To the employees agree not to compete with Practice within extent that the Practice Territory for one (1) year after termination court permits bluepenciling of the employment non-competition agreement, except in the event Physician terminates such agreement for Physician Causeparties intend that the court will take all action necessary to revise it and those provisions necessary to it so as to create a binding and enforceable provision.
(e) Practice understands Major Competitor shall include, without limitation, (i) all entities which are in the same or a similar business to that of Company, its affiliates, successors or assigns and/or which offer a service and/or product the same or similar to any service and/or product offered or in the process of being developed or offered by Company, its subsidiaries, affiliates, successors or assigns and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill (ii) all of the individual Physicians following entities and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, their respective successors in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.interest: Wxxxxxxxxxx International
Appears in 1 contract
Samples: Executive Employment Agreement (Allis Chalmers Energy Inc.)
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation Each of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits Seller and Westinghouse agrees that during the Term of this Management Services Agreement and for a period of five (5) years from after the termination date of this Management Services AgreementClosing Date (the "RESTRICTED PERIOD"), except it shall not anywhere in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not world either directly or indirectly own (excluding ownership whether through its Affiliates, as a shareholder, partner or consultant or otherwise) promote, market, sell, license, own, operate, finance or otherwise commercialize or engage in, or solicit or negotiate to engage in, any business to volume reduce, recycle or otherwise treat or process IER Feedstocks, including without limitation any processing using gasification, plasma, vitrification, incineration, metal melting, CEP or any similar or comparable technologies; PROVIDED THAT the provisions of this paragraph (a) shall not restrict the Seller or Westinghouse, directly or indirectly, from engaging, soliciting or negotiating to engage in the handling or other preprocessing of IER Feedstocks in anticipation of, but not to include, their burial, destruction, recycling or other final processing. Without limiting their obligations under Section 9.2, nothing in this paragraph (a) shall prohibit Westinghouse or the Seller from retaining any third party to provide any of the services referred to in this paragraph (a) if such activities are provided ancillary to other services provided by Westinghouse or the Seller, as applicable.
(b) The Seller agrees that during the Restricted Period it shall not, at any operating commercial nuclear power plant anywhere in the world, engage, either directly or indirectly (whether through its Affiliates, as a shareholder, partner or consultant or otherwise), in (i) the removal of water from Radioactive Waste accomplished primarily by physical means, 46 -40- for disposal without further treatment or processing of such Radioactive Waste or (ii) solidification of Radioactive Waste with a cement binder in preparation for disposal without further treatment or processing of such Radioactive Waste (the "SPECIFIED RESTRICTED PROCESSES"); PROVIDED THAT the provisions of this paragraph (b) shall not restrict the Seller, directly or indirectly, from (x) engaging in any treatment of Radioactive Waste performed before the Radioactive Waste is further treated in any process, other than the Specified Restricted Processes, which the Seller provides or will provide in the future, (y) processing any Secondary Waste of the Seller or (z) either the removal of water from Radioactive Waste or solidification of Radioactive Waste with a cement binder, provided that the amount of Radioactive Waste processed at the request of any customer pursuant to this clause (z) is DE MINIMIS (i.e., not more than the equivalent of two 55-gallon drums over the life of the applicable contract), and such services are provided ancillary to other services provided by the Seller to the same customer. This paragraph (b) is not intended to apply to activities of Westinghouse or its Affiliates (other than the Seller or its Subsidiaries) unless Westinghouse or such Affiliates are performing such activities on behalf of the Seller.
(c) The activities prohibited by paragraph (a) above are referred to herein as a "FIRST COMPETING ACTIVITY", the activities prohibited by paragraph (b) above are referred to herein as a "SECOND COMPETING ACTIVITY" and they are collectively referred to herein as the "COMPETING ACTIVITIES".
(d) The restrictions set forth in paragraphs (a) and (b) above shall not restrict the Seller, Westinghouse or any of their respective Affiliates from performing their respective obligations pursuant to contracts with the United States of America or any agency thereof or any other domestic or foreign government or government agency or pursuant to any subcontracts, supply contracts or other similar contracts or other agreements entered into in connection with or under any such governmental contracts, subject to their respective obligations under Section 9.2. In addition, the restrictions set forth in paragraphs (a) and (b) above shall not prohibit the Seller or Westinghouse or any of their respective Affiliates from owning, directly or indirectly, less than five percent (5%) of any class of securities listed on a national securities exchange or traded publicly in the equity over-the-counter market of any publicly traded entity)corporation engaged in any Competing Activity. In addition, manage, operate, controlthe restrictions set forth in paragraphs (a) and (b) above shall not prohibit the Seller or Westinghouse from performing their obligations under any Subcontract, or otherwise be associated withfrom entering into the arrangements contemplated by Section 7.19(d) with respect to any Non-Transferred Contract or, lend funds toduring the first nine months after the Closing, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or from performing 47 -41- any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Assumable Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree that the Buyer Sub elects not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, perform pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one Section 7.18(a)(vi) or (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Causeb).
(e) Practice understands and acknowledges It is recognized by the parties hereto that damages for breaches of covenants of the provisions nature contained in Section 5.6 hereof and this Section 5.7 9.1 are designed difficult if not impossible precisely to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordinglyprove; therefore, if Practice breaches any obligation of Section 5.6 hereof or it is agreed that this Section 5.79.1 shall be enforceable by mandatory injunction, in addition to any other remedies remedy available to the Buyer or the Buyer Sub under this Management Services Agreement or at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction restrictions contained in this Section 9.1 shall be deemed to be unenforceable due by reason of the extent, duration or geographical scope or other provision hereof, then the parties hereto contemplate that the court shall reduce such extent, duration, geographical scope or other provision hereof and enforce this Section 9.1 in its reduced form for all purposes in the manner contemplated hereby.
(f) If during the Restricted Period the Seller transfers or agrees to an excessive time periodtransfer any substantial portion of its assets to any third party or Westinghouse transfers or agrees to transfer (by sale, geographic area merger or restricted activityotherwise) all or substantially all of the Seller's capital stock to any third party, as a condition precedent to such transfer Westinghouse and the covenant Seller shall be reformed cause the transferee to agree in writing with the Buyer and the Buyer Sub to comply with such time periodthe Seller's obligations under Section 9.1(a) and Section 9.2 for the remainder of the Restricted Period. However, in the event Westinghouse sells the capital stock of the Seller or the Seller sells all or substantially all of its assets to a third party (the "SEG SUCCESSOR"), during the remainder of the Restricted Period the geographic area scope of the non-competition obligation set forth in paragraph (a) above for the SEG Successor (and, in the event of a stock transfer or restricted activity merger in which the Seller survives, the Seller) will be reduced to North America and the SEG Successor will not be required to divest or shut down any existing operations in North America; PROVIDED, HOWEVER, that any expansion of any First Competing Activity (which for purposes hereof shall mean either (x) any increase in total design capacity for processing of IER Feedstocks or (y) any increase in the design radiation level of the IER Feedstocks to be processed) by the Seller or the SEG Successor would be held enforceablesubject to the non-competition obligation set forth in paragraph (a) above. Any SEG Successor would not be subject to the non-competition obligation set forth in paragraph (b) above.
Appears in 1 contract
Samples: Asset Purchase Agreement (Molten Metal Technology Inc /De/)
Noncompetition. Practice hereby recognizes and Executive acknowledges that -------------- Business Manager he has obtained and will incur substantial costs in providing continue to obtain during employment with the equipmentCompany, support services, personnel, management, administrationknowledge of Protected Information and Trade Secrets, and other items and services that are the subject matter of this Management Services Agreement and that had personal involvement in the process Company's customer relationships, that would, in the event Executive were to unfairly use or disclose that Protected Information or Trade Secrets or employ that personal involvement on behalf of providing services under this Management Services Agreementa competitor of the Company or of any Applicable Affiliate, Practice cause irreparable harm to the Company and/or the Applicable Affiliates. In return for at-will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that employment with the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business ManagerCompany, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation consideration of the Dispensary Business at Offices contemplated byCompany's providing this Agreement as amended, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement Executive's employment and for a period of five twenty-four (524) years from months after the termination date of this Management Services AgreementExecutive's Qualifying Termination Date (the "Noncompete Period"), except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice Executive shall not directly or indirectly own (excluding as a director, officer, employee, shareholder, investor, partner, consultant or otherwise) provide services under circumstances in which (i) disclosure or use of Protected Information or Trade Secrets known to Executive or (ii) use of Executive's personal involvement in the Company's or any Applicable Affiliate's customer relationships would reasonably be considered competitively beneficial to any other company, business, person or entity (including the Executive) who/which: (A) produces or sells, or plans to produce or sell, Restricted U.S. Products/Services within the continental United States, (B) produces or sells, or plans to produce or sell, Restricted Foreign Products in any country of the world in which the Applicable Foreign Affiliates sold products or services during the twenty-four (24) months prior to Executive's Qualifying Termination Date, or (C) produces or sells, or plans to produce or sell, Other Restricted Products/Services in either the continental United States or in any country of the world in which the Applicable Foreign Affiliates sold products or services during the twenty-four (24) months prior to Executive's Qualifying Termination Date. Nothing in this Agreement shall prohibit Executive's ownership of less securities of a corporation that is listed on a national securities exchange or traded in the national over-the-counter market in an amount that does not exceed (together with any indirect or attributed ownership) five percent (5%) of the equity outstanding shares of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreementsuch corporation.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 1 contract
Noncompetition. Practice hereby recognizes Sellers recognize that Buyer's decision to enter into this Agreement is induced primarily because of the covenants and acknowledges assurances made by Sellers in this Agreement; that -------------- Business Manager will incur substantial costs in providing Sellers' covenant not to compete is necessary to ensure the equipment, support services, personnel, management, administration, continuation of the business and other items and services that are the subject matter reputation of this Management Services Agreement Buyer; and that irrevocable harm and damage will be done to Buyer if Sellers compete with Buyer within certain specified areas. Therefore, in consideration of the process promises of providing services under Buyer in this Agreement, Sellers covenant and agree that during the term of the Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement and for a period of five one (51) years from year after the termination date or expiration of this the Management Services Agreement, except in the event Sellers, through Medical Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereofor individually, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity)own, manage, operate, control, or be otherwise associated with, participate in the management or control of, be associated employed by, consult with, lend funds to, lend its Sellers' Medical Practice's name to, receive any remuneration from or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion marketing, promotion, or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or the Buyer within a thirty (30) mile radius of any current or future facility from which Medical Practice provides Medical Services (the "Medical Practice Area") or (ii) offering any type of service service(s) or product in the Practice Territory to third parties product(s) similar to those offered by Business Manager the Buyers, provided, however, that this Section 11.1 is not intended to Practice. Notwithstanding limit the above restriction, nothing herein shall prohibit Practice or any ability of its holders from providing management and administrative services the Sellers to its or their own medical practices after the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice practice orthopedic medicine within the Medical Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice Area. If any Seller shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches breach any obligation of Section 5.6 hereof or this Section 5.7Section, in addition to any other remedies available under this Management Services Agreement Agreement, at law or in equity, Business Manager Buyer shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services this Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing Sellers acknowledge the damages that would result from a violation of this Section 11 would be One Hundred Thousand Dollars ($100,000.00) per breaching Seller. The breaching Seller(s) shall pay to Buyer in cash this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision amount within thirty (30) days after Buyer notifies the breaching Seller(s) of the covenants herein is held by breach of this Section 11 or after a court of competent jurisdiction to be unenforceable final binding judgement.
Section 11.1 shall not apply (i) in the event Medical Practice terminates the Management Services Agreement due to an excessive time periodIOI Regional's material breach of the Management Services Agreement; or (2) the Management Services Agreement is terminated due to legislative, geographic area regulatory or restricted activity, administrative decisions that effects the covenant shall provisions of the Management Services Agreement and that cannot be reformed to comply with such time period, geographic area or restricted activity that would be held enforceableresolved by mutual agreement of the parties.
Appears in 1 contract
Samples: Stock Purchase Agreement (Integrated Orthopedics Inc)
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of (a) As a material inducement to Company to enter into this Management Services Agreement and that for Company to pay Executive compensation stated in Section 3, as well as any additional benefits provided for herein, Executive covenants and agrees that:
(i) If Executive voluntarily terminates his employment or is terminated for Cause, Executive shall not, in the process Market Area as defined below, directly or indirectly, for a period commencing on the Closing Date and continuing for one year following the Date of providing services under this Management Services AgreementTermination (the "Restricted Period"), Practice will be privy to financial and Confidential Information for whatever reason, directly or indirectly, whether as shareholder, partner, joint venturer, or agent of Business Manager and any person, firm or corporation or other Regional Practicesentity or otherwise, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection engage in any or all of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenantsactivities:
(a) During Enter into or engage in any business which directly or indirectly competes with the Term business of Company and its subsidiaries (collectively for purposes only of this Management Services Agreement and except for Section "Company");
(b) Interfere or attempt to interfere with the performance business, goodwill, trade, customers or employees of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement Company or as expressly agreed to by Business Manager with any one dealing with Company in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated byCompany's business;
(c) Solicit borrowers' and depositors' business, patronage, or subject toperform any services for, any business which directly or indirectly competes with the business carried on by Company;
(d) Promote or assist, financially or otherwise, any person, firm, association or corporation engaged in any business which directly or indirectly competes with the business carried on by Company.
(ii) During the Restricted Period, the Executive shall not, directly or indirectly, knowingly solicit or encourage to leave the employment of Company, any employee of Company or hire any employee who has left the employment of Company after the date of this Management Services Agreement within one year of the termination of such employee's employment with Company or such shorter period as expressly shall be agreed to by Business Manager Company in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except If the Executive violates this restrictive covenant and Company brings legal action for injunctive or other relief, Company shall not as specifically agreed a result of the time involved in obtaining the relief be deprived of the benefit of the full period of the restrictive covenant. Accordingly, the restrictive covenant shall be deemed to have the duration specified herein, computed from the date the relief is granted, but reduced by Business Manager the time between the period when the restriction began to run and the date of the first violation of the covenant by Executive. If any court shall determine that the duration or geographical limit of any restriction contained in writingthis paragraph is unenforceable, Practice commits it is the intention of the parties that the restrictive covenant set forth herein shall not thereby be permitted to be terminated but shall be deemed amended to the extent required to render it valid and agrees that during enforceable. Such amendment shall apply only with respect to the Term operation of this Management Services Agreement paragraph and for a period of five (5) years from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) jurisdiction of the equity of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with court that has made the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreementadjudication.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants If any court determines that any provision of Physician-Shareholder whereby they agree not to compete with Practice within this Section, or any part thereof, is invalid or unenforceable, the Practice Territory for one (1) year after termination remainder of the employment agreementprovisions of this Section shall not thereby be affected and shall be given full effect, except in without regard to the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercisedinvalid portions.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination If any court determines that any of the employment agreementprovisions of this Section, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill or any part thereof, is unenforceable because of the individual Physicians and Optometrists duration of Practice. Accordinglysuch provision or the area covered thereby, if Practice breaches any obligation such court shall have the power to reduce the duration or area of Section 5.6 hereof or this Section 5.7such provisions and, in addition to any other remedies available under this Management Services Agreement at law or in equityits reduced form, Business Manager such provision shall then be enforceable and shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceableenforced.
Appears in 1 contract
Samples: Employment Agreement (First Federal Financial Services Corp)
Noncompetition. Practice hereby recognizes During the term of the Executive’s employment with the Company (“Employment Term”) and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection two (2)-year period following the involuntary termination of Business Managersuch employment under any circumstances (the “Restricted Period”), and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
Executive shall not, within any geographic area covered by any Independent System Operator (aISO) During or Regional Transmission Organization (RTO) in which the Term Company or any of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement its subsidiaries or as expressly agreed to by Business Manager affiliates is engaged in writingbusiness or marketing activities (“Restricted Areas”), Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity)indirectly, own, manage, operate, control, or otherwise be associated withprovide executive or management level consulting, lend funds to, lend its name to, employment or maintain management services (“Restricted Services”) to any interest whatsoever in any enterprise (i) having to do with the provisionIndependent Power Producer (IPP), distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in “hybrid” unregulated electricity provider that operates merchant energy assets that are competitive with the Practice Territory to third parties similar to those offered assets owned by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice Company or any of its holders from providing affiliates, or (iii) any retail energy provider (“Restricted Service Recipients”); provided, however, that if the Executive provides written notice to the Company identifying a prospective service recipient and describing the prospective employment, consulting, management and administrative or other services to its or their own medical practices after be provided, and the termination geographic area included within Executive’s proposed services, the Company shall inform the Executive as soon as reasonably practicable that the Company intends to enforce the provisions of this Management Services Agreement.
(cSection 4(a), otherwise the provisions of this Section 4(a) shall be deemed waived by the Company, which waiver shall not be unreasonably withheld. The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination scope of the employment agreement, except in Restricted Areas and Restricted Service Recipients shall be determined as defined above according to the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination current business of the employment agreementCompany or its affiliates during the last year of Executive’s employment. Notwithstanding the foregoing, except in the event Physician terminates such agreement for Physician Cause.
Executive’s ownership solely as an investor of two percent (e2%) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill or less of the individual Physicians and Optometrists outstanding securities of Practice. Accordinglyany class of any publicly-traded securities of any company shall not, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7by itself, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief considered to be without competition with the necessity Company or any of posting a bond, cash its subsidiaries or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceableaffiliates.
Appears in 1 contract
Noncompetition. Practice hereby recognizes The Executive expressly agrees, confirms, represents and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection benefit of Business Managerthe Company, and that Business Manager would not have entered into this Management Services Agreement without the following covenantsas follows:
(a) During For the Term of this Management Services Agreement and except for period set forth below (the performance of Medical Services and ancillary services at "Non-Compete Period") the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice Executive shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not either directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restrictionCompany, nothing herein shall prohibit Practice or any of its holders from providing management successors or affiliates, within the Applicable Territory (defined below), and administrative services to its in particular, the Executive shall not, as owner, operator, manager, Executive, consultant, independent contractor, agent, salesperson, officer, director, shareholder, investor, guarantor, partner or their own medical practices after member of a joint venture, or otherwise, directly or indirectly, engage in any manner in the termination Business (defined below) within the Applicable Territory. For purposes of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof , the term "Applicable Territory" shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination mean and include all of the employment agreementUnited States of America, except Western Europe and Canada and any other country in which the Company is engaged in Business during the term hereof, and the term "Business" shall mean any enterprise whose primary business is selling information about companies, people and industries to other businesses in direct competition with Company, including but not limited to [*], as well as any new entities (including entities that Executive may found), that are actively engaged in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists provision of business information to users on a paid, subscription basis; provided that in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled order to enforce this Management Services Agreement by injunctive relief and by specific performance non-competition restriction as against such an additional entity, the Company shall have given notice to Executive of the Management Services Agreementinclusion of such additional entity to the restricted employer list at least thirty (30) days prior to the date on which Executive was terminated; provided that if the existence of such new company does not become generally known within the business community until after Executive's ------------------------ [*] Indicates that material has been omitted and confidential treatment requested therefor. All such material has been filed separately with the Commission pursuant to Rule 406. termination, the Company shall have thirty (30) days from the earlier of the date on which it became aware of the existence of such relief entity, or the date on which it should reasonably have become aware of the existence of such entity based on publicly available information, to be without inform Executive of the necessity application of posting a bondthis provision to such entity, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover and any other damages business engaged in by the Company or any of its subsidiaries or affiliates during the Term other than any business incidental to which it is entitled the operations of the Company or any of its subsidiaries taken together as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.whole;
Appears in 1 contract
Samples: Employment Agreement (Hoovers Inc)
Noncompetition. Practice hereby recognizes and The Employee acknowledges that -------------- Business Manager will incur substantial costs in providing (i) the equipment, support services, personnel, management, administration, and other items and Employee performs services of a unique nature for the Company that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Managerirreplaceable, and that Business Manager the Employee’s performance of such services to a competing business will result in irreparable harm to the Company, (ii) the Employee has had and will continue to have access to Confidential Information which, if disclosed, would not unfairly and inappropriately assist in competition against the Company or any of its affiliates, (iii) in the course of the Employee’s employment by a competitor, the Employee would inevitably use or disclose such Confidential Information, (iv) the Company and its affiliates have entered into this Management Services Agreement without substantial relationships with their customers and the following covenants:
Employee has had and will continue to have access to these customers, (av) During the Term of this Management Services Agreement Employee has received and except will receive specialized training from the Company and its affiliates, and (vi) the Employee has generated and will continue to generate goodwill for the performance of Medical Services Company and ancillary services at its affiliates in the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation course of the Dispensary Business at Offices contemplated byEmployee’s employment. Accordingly, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement Employee’s employment hereunder and for a period of five one (51) years from year thereafter, the termination date of this Management Services AgreementEmployee agrees that the Employee will not, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity)indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise be associated withotherwise, lend funds toand whether or not for compensation) or render services to any person, lend its name tofirm, corporation or maintain any interest whatsoever other entity, in any enterprise (i) having to do with the provisionwhatever form, distribution, promotion or advertising of any type of management or administrative services or products to third parties engaged in competition with Business Manager; and/or (ii) offering the Company or any type of service its subsidiaries or product affiliates in any other material business in which the Practice Territory Company or any of its subsidiaries or affiliates is engaged on the date of termination or in which the Company’s board has considered, on or prior to third parties similar such date, to those offered by Business Manager to Practicehave the Company or any of its subsidiaries or affiliates become engaged in on or after such date, in Oklahoma and the Texas Panhandle, and any basin or area in which the Company’s Board has actively considered having the Company operate during the Employment Term. Notwithstanding the above restrictionforegoing, nothing herein shall prohibit Practice the Employee from being a passive owner of not more than one percent (1%) of the equity securities of a publicly traded corporation engaged in a business that is in competition with the Company or any of its holders from providing management and administrative services to its subsidiaries or their own medical practices after affiliates, so long as the termination Employee has no active participation in the business of such corporation. In addition, the provisions of this Management Services AgreementSection 11(b) shall not be violated by the Employee commencing employment with a subsidiary, division or unit of any entity that engages in a business in competition with the Company or any of its subsidiaries or affiliates so long as the Employee and such subsidiary, division or unit does not engage in a business in competition with the Company or any of its subsidiaries or affiliates.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 1 contract
Noncompetition. Practice As a condition to Purchaser's obligation to purchase the Acquired Assets and in order to ensure to Purchaser the full benefits of the Acquired Assets, Seller hereby recognizes covenants and agrees that, for a period of three (3) years following the Closing Date (the "Restricted Period") and within the entire United States, the NATC Group shall not engage, directly or indirectly, in the business of manufacturing, and shall not contract for the manufacturing of, any loose leaf chewing tobacco products; provided, however, that the NATC Group shall not be deemed to be engaged in the business of manufacturing, and shall not be deemed to have contracted for the manufacturing of, any loose leaf chewing tobacco products as a result of (i) the acquisition after the Closing Date of any Person engaged in such business or in such contracting or (ii) the provision by International Flavors and Technologies, Inc., a subsidiary of NATC engaged in the business of developing tobacco blends and flavorings, or any successor, or any successor to such business, of consulting or other services to Persons engaged in the business of manufacturing, or contracting for the manufacturing of, loose leaf chewing tobacco products; provided, further, however, that (A) in the event the NATC Group directly or indirectly acquires control of a Person that is engaged in the business of manufacturing, or contracts for the manufacturing of, any loose leaf chewing tobacco products, the NATC Group shall not, and shall cause any such controlled Person not to, manufacture or contract to be manufactured during the Restricted Period any brands that were not in existence at the time of such acquisition, and (B) International Flavors and Technologies, Inc. and any successors to its business shall not provide consulting or other services to any person during the Restricted Period that involve efforts to replicate any of the Brands. Seller acknowledges that -------------- Business Manager any breach of the covenants of this Section will incur substantial costs result in providing irreparable damage and continuing injury to Purchaser. Therefore, in the equipmentevent of any breach or threatened breach of the covenants in this Section, support servicesSeller acknowledges that Purchaser shall be entitled, personnelwithout limiting any other remedies, management, administrationto an injunction restraining the NATC Group from committing any such violation, and other items Seller hereby consents to the issuance of such injunction. Seller acknowledges and services agrees that are (i) the subject matter covenants of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder Section are reasonably necessary for the protection of Business Manager, Purchaser and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Managerbusiness; and/or (ii) offering any type such covenants are reasonably limited with respect to the activities prohibited, the duration thereof, the geographical area thereof, the scope thereof and the effect thereof on Seller and the public; (iii) the purpose and effect of service or product in such covenants is solely to protect Purchaser for a limited period of time from unfair competition by Seller; and (iv) the Practice Territory purchase of the Acquired Assets is expressly conditioned upon Seller agreeing to third parties similar to those offered abide by Business Manager to Practice. Notwithstanding and be bound by all of the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management covenants and administrative services to its or their own medical practices after the termination provisions of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in Section. In the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form that any provision of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed shall be determined by any court to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordinglybe unenforceable, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled interpreted to enforce this Management Services Agreement by injunctive relief extend over the maximum time periods for which it may be enforceable, and by specific performance of to the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing maximum extent in this paragraph shall limit Business Manager's right to recover any and all other damages respects as to which it is entitled may be enforceable, all as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with determined by such time period, geographic area or restricted activity that would be held enforceablecourt.
Appears in 1 contract
Samples: Asset Purchase Agreement (North Atlantic Trading Co Inc)
Noncompetition. Practice hereby recognizes In order to induce Buyer to enter into this Agreement, to ensure Buyer of the full benefit of the sale and acknowledges that -------------- Business Manager will incur substantial costs in providing transfer of the equipment, support services, personnel, management, administrationShares hereunder, and other items to enhance the earnings of Buyer in future years, Seller undertakes and services that are agrees that, during the subject matter of this Management Services Agreement and that in three-year period beginning on the process of providing services under this Management Services AgreementClosing Date, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenantsprior written consent of Buyer:
(a) During Neither Seller nor any Affiliate of Seller shall, directly or indirectly, own, manage, operate, market, finance, join, control, or participate in the Term ownership, management, operation, marketing, financing, or control of this Management Services Agreement any person or entity which engages in the transshipment (not currently reserved for U.S.- flag vessels under the U.S. Xxxxx Act) of crude oil from large bulk vessels unable to enter shallow-water ports fully laden in the United States Gulf or Atlantic utilizing smaller bulk vessels in sizes between 40,000 deadweight tons and except for 150,000 deadweight tons which will then carry the performance of Medical Services and ancillary services at crude oil to destination ports (hereinafter "Lightering Services"); provided, however, that the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice foregoing shall not establishprohibit Seller, operate combined with its Affiliates, from owning, in the aggregate, securities not in excess of 5% of any class of securities of a company if such class of securities is registered with the Securities and Exchange Commission under the Securities Exchange Act of 1934 as amended; and further provided that the foregoing shall not prohibit the Seller or provide Medical Services at a medical office, clinic any of its Affiliates from engaging in salvage or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facilityemergency response work.
(b) Except as specifically agreed to by Business Manager in writingNeither Seller nor any Affiliate of Seller shall, Practice commits and agrees that during the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership indirectly, persuade or attempt to persuade any customer or prospective customer of less five percent (5%) Petrolink or any Subsidiary of the equity of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise Petrolink (i) having not to do contract with or continue to contract with Petrolink or any such Subsidiary for the provision, distribution, promotion provision of Lightering Services or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering to acquire Lightering Services from a person or entity other than Petrolink or any type such Subsidiary;
(c) Neither Seller nor any Affiliate of service Seller shall, directly or product in indirectly, without the Practice Territory prior consent of Buyer, persuade or attempt to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice persuade any employee or independent contractor of Petrolink or any of its holders from providing management and administrative services Subsidiaries, to its leave Petrolink's or their own medical practices after the termination of this Management Services Agreement.
(c) The written Employment Agreements described any such Subsidiaries' employ or otherwise terminate such person's contractual relationship with Petrolink or any such Subsidiary, or, with respect to employees, to become employed by any entity or person other than Petrolink or any such Subsidiary. Nothing in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed 9.4 shall be interpreted to preserve the goodwill of Business Manager prevent, preclude or in any way limit Seller pursuing and the goodwill of the individual Physicians and Optometrists of Practice. Accordinglyperforming Lightering Services, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available business, currently reserved for U.S.-flag vessels under this Management Services Agreement at law the U.S. Xxxxx Act and activities directly related to and in support of such current Xxxxx Act work even if the limits or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance extent of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceableXxxxx Act reservation may hereafter change.
Appears in 1 contract
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During For the Term period set forth on Schedule 6.10(a), Seller agrees that it will not directly or indirectly engage in the (1) manufacture, sale, import, export or distribution of Exclusive Licensed Products and Improvements; or (2) repair and overhaul Exclusive Licensed Products and Improvements, in each case in the Licensed Field (the “Restricted Activities”); provided, however, that nothing in this Section 6.10 shall be deemed to limit in any way the conduct of the Excluded Businesses, and such activities and business shall be excluded from the definition of Restricted Activities for all purposes related to this Agreement. In the event of any assignment of this Management Services Agreement and except for pursuant to Section 8.6, the performance obligations of Medical Services and ancillary services at the Office as contemplated by Seller under this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice Section 6.10 shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facilityterminate.
(b) Except as specifically agreed The restrictions set forth in this Section 6.10 shall not be construed to by Business Manager in writing, Practice commits and agrees prohibit or restrict Seller or its Affiliates from acquiring any Person or business that during the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement, except engages in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereofRestricted Activities, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise provided that (i) having the engagement in such Restricted Activities do not constitute the principal part of the activities of the Person or business to do with be acquired (based on total revenues expressed in United States dollars or calculated in United States dollars utilizing the provisionrelevant and then applicable current foreign exchange rate, distribution, promotion of all sales of such Person or advertising business during the consecutive four (4) full calendar quarters immediately preceding the Effective Date of any type acquisition of management such Person or administrative services business) or products to third parties in competition with Business Manager; and/or (ii) offering any type if the Restricted Activities constitute in excess of service [***] of the revenues of the Person or product business acquired, Seller shall (1) promptly provide written notice to Purchaser after its acquisition of such Person or business and (2) use its commercially reasonable efforts to divest that portion of the Person or business that engages in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice Restricted Activities within twelve (12) months after its acquisition of such Person or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreementbusiness.
(c) The written Employment Agreements described in Notwithstanding this Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within 6.10, if Article 2 (License) is terminated before the Practice Territory for one (1) year after termination [***] anniversary of the employment agreementEffective Date, except Seller’s obligations set forth in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercisedthis Section 6.10 shall be immediately terminated and of no further force and effect.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists Notwithstanding anything to the contrary in this Agreement (or the form of Exhibit 5.2ATransaction Documents), pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition 6.10 shall not apply (i) to any other remedies available under this Management Services Agreement at law business or in equityoperations of Seller or any of its Affiliates which are transferred to any third party after the date hereof, Business Manager shall be entitled (ii) any subsidiaries of Seller the stock of which is transferred to enforce this Management Services Agreement by injunctive relief and by specific performance any third party after the date hereof, (iii) any Affiliate of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled Seller who becomes an Affiliate as a result of Practice's breach. If a change in control of Seller or (iv) any provision acquisition of the covenants herein is held securities by a court Seller’s (or any of competent jurisdiction to be unenforceable due to an excessive time periodSeller’s Affiliate’s) pension trust or similar employee benefit plan investment vehicle, geographic area or restricted activity, the covenant provided that any securities acquired shall be reformed to held for investment purposes only and such benefit plans comply with such time period, geographic area or restricted activity that would be held enforceablethe Employee Retirement Income Security Act of 1974 requirements as to the independence of investment decisions.
Appears in 1 contract
Samples: Asset Purchase and License Agreement (Innovative Solutions & Support Inc)
Noncompetition. Practice hereby recognizes 13.1 The Officer acknowledges that, during the course of his employment hereunder, he will have access to the Companies’ customer and business prospects, knowledge of and experience in the techniques and methods the Companies used to do business in its industries and other information and know-how which, even if not directly disclosed to a competitor of the Companies, would give a competitor significant and unfair advantages over the Companies if made available to it through the Officer’s employment.
13.2 The Officer acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that SJI is engaged in the process business of providing services under for the acquisition, sale and transportation of natural gas, electricity and related products, for wholesale and retail users, and marketing total energy management services and other energy related services, throughout New Jersey, Pennsylvania, New York and other geographic areas within the United States.
13.3 Accordingly, unless the Officer requests in writing and is thereafter authorized in writing to do so by the Companies, the Officer will not, during the term of this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement and for a period of five one (51) years from year thereafter (collectively, “the termination date of this Management Services AgreementNoncompetition Period”), except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity)own, manage, operate, controljoin, control or participate in the ownership, management, operation or control of, or otherwise be associated withemployed by, lend funds toany business corporation, lend its name toproprietorship, partnership or maintain any interest whatsoever other entity which competes with or is engaged in any enterprise alliance or joint venture with either of the Companies.
13.4 The Officer further agrees that, unless he/she requests in writing and is thereafter authorized in writing to do so by the Companies, the Officer will not, during the Noncompetition Period, directly or indirectly on behalf of any entity other than the Companies (i) having induce or attempt to do with induce any employee or independent contractor of the provisionCompanies to leave the employ of, distributionor terminate or adversely affect the contractual relationship with, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or the Companies, (ii) offering hire or affirmatively seek any type business affiliation with any person who was an employee of service the Companies within six months after such person ceased to be an employee of the Companies, or product (iii) induce or attempt to induce any customer, supplier, licensee, franchisee or other business relation of the Companies to cease or reduce doing business with the Companies or in any way interfere with the Practice Territory to third parties similar relationship between any such customer, supplier, licensee or business relation and the Companies (including making any negative statements or communications about the Companies).
13.5 The undertakings in this Section 13: shall apply only to those offered by Business Manager areas where the Companies engage or propose to Practice. Notwithstanding engage in business or which the above restrictionCompanies, nothing herein at the termination of the Officer’s employment hereunder have defined as their market territory, but shall prohibit Practice not apply if the Company is or any the Companies are, and after thirty days’ written notice to the Companies thereof continue to be, in default of its holders from providing management and administrative services to its or their own medical practices after obligation to make any of the termination payments they are then required to make to the Officer and the Officer is not in default in the performance of his obligations.
13.6 If the provisions of this Management Services Agreement.
(c) The written Employment Agreements described Section 13 should be adjudicated to exceed the time, geographic or other limitations permitted by applicable law in Section 5.1 hereof any jurisdiction, then such provisions shall contain covenants be deemed reformed in such jurisdiction to the maximum time, geographic or other limitations permitted by the law applicable in that jurisdiction. In addition, the Officer hereby authorizes the Company to bring the Officer’s obligations hereunder to the attention of, and to provide a copy or description of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination pertinent Sections of the employment agreementthis Agreement to, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ any entity which the employees agree not Company believes may offer or has offered employment to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician CauseOfficer.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 1 contract
Samples: Officer Employment Agreement (South Jersey Industries Inc)
Noncompetition. Practice hereby recognizes Employee acknowledges and acknowledges agrees that -------------- Business Manager Employee will incur substantial costs acquire Proprietary Information, as defined in providing Section 1.2 of the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Employee Proprietary Information & Inventions Agreement, Practice will be privy to financial and Confidential Information attached hereto as Exhibit A, concerning the Business (as defined below) as the result of Business Manager and other Regional Practices, to which Practice would not otherwise be exposedEmployee's employment. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and Employee further acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, is very competitive and that competition by Employee in this Business Manager during Employee's employment, or after Employee's employment terminates, would not have entered into this Management Services Agreement without severely injure the following covenants:
Company and/or CUseeMe and their respective Affiliates (a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territorydefined below). During the Term period which commences on the Effective Date and continues during Employee's employment and terminates one (1) year following the last day of this Management Services Agreement and except for Employee's employment with the operation Company or its Affiliates (the "RESTRICTED PERIOD"), whether termination of the Dispensary Business at Offices contemplated byemployment is voluntary or involuntary, or subject toEmployee shall not, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership including without limitation, through any Affiliate of less five percent (5%) of the equity of any publicly traded entityEmployee), be employed by, own, manage, operate, controlcontrol or otherwise engage or participate in, or otherwise be associated withconnected as a partner, lend funds tocreditor, lend its name toguarantor, advisor, member of the board of directors of, employee of or consultant, proprietor, director or otherwise, in any company or business, or maintain any interest whatsoever division, group, or other subset thereof, developing or engaged in any enterprise (i) having to do a business competitive with the provisionBusiness (other than a passive investment, distributionnot exceeding one percent (1%) of the outstanding beneficial ownership, promotion in a publicly held and traded company). The "BUSINESS," as used herein, means the design, manufacture or advertising of any type of management sale, or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product assistance in the Practice Territory to third parties design, manufacture or sale, of products or services which are similar to those offered by Business Manager to Practice. Notwithstanding products or services which the above restrictionCompany, nothing herein shall prohibit Practice CUseeMe or any of its holders from providing management and administrative services to its or their own medical practices respective Affiliates at any time after the termination of this Management Services AgreementEffective Date design, manufacture or sell currently and during the Restricted Period. Similar products may include, without limitation, rich media communications solutions, video networking hardware, software or services, interactive voice and visual communications software.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 1 contract
Samples: Employment and Non Competition Agreement (First Virtual Communications Inc)
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During Executive acknowledges that his relationship with Comdial and its affiliates will give him access to valuable confidential and proprietary information and expertise not generally known in the Term industry in which Comdial and its affiliates are engaged (including information conceived, originated, discovered or developed by Executive) relating to the telecommunications, telephone systems and computer telephony products and business of Comdial (the "Business"), including, without limitation, the following: technical know-how; lists of previous, present and prospective venture partners, investors, and lenders; credit information; sources of supply; business plans, proposals and summaries; private processes, techniques and formulae; research and development activities and data; inventions; and other aspects of the affairs and business operations of Comdial and its affiliates as they exist on the date hereof (or as they may from time to time exist during the term of this Management Services Agreement and except for Agreement). If used to the performance benefit of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage company engaging in a Dispensary Business at any other office or facilitybusiness similar to the Business, such information would prejudice the interests of Comdial.
(b) Except In view of the foregoing, as specifically agreed a material inducement to by Business Manager in writingComdial to enter into this Agreement, Practice commits and Executive hereby agrees that neither Executive nor any entity controlled by or otherwise affiliated with Executive shall, during the Employment Term and thereafter during thePost Employment Period (defined in Section 7(c) of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement), except for duties to be performed by Executive as an employee of Comdial, in any manner, directly or indirectly, own, manage, operate, control, be employed by, consult with, participate in or be connected in any manner with the ownership, management, operation or control of any sole proprietorship, partnership, corporation or other entity (A) which competes with Comdial or its affiliates in the event Practice terminates this Management Services Agreement development, manufacture or sale of (1) any product sold or service rendered by Comdial or any of its affiliates as of the date the Employment Term is terminated, or (2) any product in active development by Comdial prior to the date on which the Employment Term is terminated (the active development of any product to be established by verifiable dollars being spent in such product's development) in any country where Comdial then conducts business, or (B) which calls upon, solicits, diverts or takes away any of the then existing customers or patrons of Comdial for the purpose of causing or attempting to cause pursuant any such person to Section 7.2(bpurchase products sold or services rendered by Comdial or any of its affiliates from any person other than Comdial or its affiliates or otherwise diverts business from Comdial. Nothing contained in the foregoing sentence shall be construed as preventing Executive (i) hereoffrom owning, Practice shall not directly or indirectly own (excluding ownership of solely for passive investment, less than five percent (5%) of the equity stock of any publicly traded entity), manage, operate, controlentity registered on a recognized stock exchange, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering from engaging in any type business activity if Executive's employment is terminated by Comdial prior to the expiration of service or product the Employment Term without Cause. Executive agrees that the specified duration of the covenants set forth in this Section 7 shall be extended by and for the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or term of any period during which Executive is in violation of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreementany such covenant.
(c) The written For purposes of this Section 7, the term "Post Employment Agreements described in Section 5.1 hereof Period" shall contain covenants mean a period of Physician-Shareholder whereby they agree not to compete with Practice within time extending from the Practice Territory for one (1) year after termination end of the employment agreementEmployment Term for the number of years set forth below, except in depending on the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination length of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill Employment Term: Length of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.Employment Post Employment Term Period -------------------- --------------- Less than 1 year 3 years 1 year but less than 4 years 2 years
Appears in 1 contract
Samples: Merger Agreement (Comdial Corp)
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager A. The Executive agrees that, except in accordance with his duties under this Agreement on behalf of the Company, he will incur substantial costs in providing not during the equipment, support services, personnel, management, administration, and other items and services that are the subject matter term of this Management Services Agreement and that Agreement: Participate in, be employed in any capacity by, serve as director, consultant, agent or representative for, or have any interest, directly or indirectly, in any enterprise which is engaged in the process business of providing distributing, selling or otherwise trading in products or services under this Management Services Agreementwhich are competitive to any products or services distributed, Practice will be privy to financial and Confidential Information sold or otherwise traded in by the Company or any of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that its subsidiaries during the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation term of the Dispensary Business at Offices contemplated byExecutive's employment with the Company, or subject towhich are competitive to any products or services being actively developed, this Management Services Agreement with the bona fide intent to market same, by the Company or as expressly agreed to by Business Manager in writingany of its subsidiaries during the term of the Executive's employment with the Company; In addition, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and the Executive agrees that during the Term of this Management Services Agreement and for a period of five (5) two years from after the termination date end of the term of this Management Services Agreement, except in Agreement (unless the event Practice terminates Company breaches this Management Services Agreement for cause pursuant by failing to Section 7.2(b) pay to the Executive all sums due him under the terms hereof, Practice in which event the following provisions of this Section 15.A shall be inapplicable), the Executive shall observe the covenants set forth in this Section 15 and shall not own, either directly or indirectly own (excluding ownership or through or in conjunction with one or more members of less his or his spouse's family or through any trust or other contractual arrangement, a greater than five percent (5%) of the equity of any publicly traded entity), manage, operate, controlinterest in, or otherwise be associated withcontrol either directly or indirectly, lend funds toany partnership, lend its name tocorporation, or maintain other entity which distributes, sells, or otherwise trades in products which are competitive to any interest whatsoever products or services being developed, distributed, sold, or otherwise traded in any enterprise (i) having to do with by the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice Company or any of its holders from providing management and administrative services to its or their own medical practices after subsidiaries, during the termination term of this Management Services Agreement, or being actively developed by the Company or any of its subsidiaries during the term of this Agreement with the Company with a bona fide intent to market same. Executive further agrees, for such two-year period following termination, to refrain from directly or indirectly soliciting Company's vendors, customers or employees, except that the Executive may solicit the Company's vendors or customers in connection with a business that does not compete with the Company or any of its subsidiaries.
(c) B. The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not Executive hereby agrees that damages and any other remedy available at law would be inadequate to compete with Practice within redress or remedy any loss or damage suffered by the Practice Territory for one (1) year after termination Company upon any breach of the employment agreementterms of this Section 15 by the Executive, except in and the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges Executive therefore agrees that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7Company, in addition to recovering on any claim for damages or obtaining any other remedies remedy available under at law, also may enforce the terms of this Management Services Agreement at law section 15 by injunction or specific performance, and may obtain any other appropriate remedy available in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 1 contract
Noncompetition. Practice hereby recognizes It is acknowledged by the Company and acknowledges the Chairman -------------- that -------------- Business Manager will incur substantial costs in providing by virtue of the equipment, support services, personnel, management, administrationposition he has held with Xxxx, and other items of the position he will hold with the Company hereunder, he will learn, have access to and/or develop, trade secrets or confidential information of the Company or its Affiliates; and/or will be entrusted with business opportunities of the Company or its Affiliates; and/or will be placed in a position to develop business good will on behalf of the Company or its Affiliates. As part of the consideration for the compensation and services benefits to be paid to the Chairman hereunder, to protect the trade secrets and confidential information of the Company or its subsidiaries or Affiliates or their customers or clients that are the subject matter of this Management Services Agreement have been and that will in the process future be disclosed or entrusted to the Chairman, the business good will of providing services under the Company or its subsidiaries or Affiliates that has been and will in the future be developed in the Chairman, or the business opportunities that have been and will in the future be disclosed or entrusted to the Chairman by the Company or its subsidiaries or Affiliates; and as an additional incentive for the Company to enter into this Management Services Agreement, Practice will the Chairman agrees to the non-competition obligations hereunder. While the Chairman continues to be privy an employee of the Company and for the two-year period immediately following the Chairman's Date of Termination, the Chairman shall not, within any geographic region in which the Company (or any Affiliate) then conducts business or in which the Company (or any Affiliate) plans to financial and Confidential Information conduct business pursuant to a business strategy adopted by the Board before the Chairman's termination of Business Manager and employment, except as permitted by the Company upon its prior written consent, (i) enter, directly or indirectly, into the employ of, or render or engage in, directly or indirectly, any services to any person, firm or corporation which directly competes with the Company (or any Affiliate) with respect to any business then conducted by the Company (or any Affiliate) or any business which the Company (or any Affiliate) plans to enter pursuant to a business strategy adopted by the Board before the Chairman's termination of employment (a "Competitor"), or (ii) become interested, directly or indirectly, in any such Competitor as an individual, partner, shareholder, creditor, director, officer, principal, agent, employee, trustee, consultant, advisor or in any other Regional Practices, to which Practice would not otherwise be exposedrelationship or capacity. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five up to three percent (53%) of any class of the equity outstanding securities of any publicly traded entity)corporation, manageeven though such corporation may be a Competitor, operate, control, or otherwise shall not be associated with, lend funds to, lend its name to, or maintain any deemed as constituting an interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or such Competitor which violates clause (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercisedimmediately preceding sentence.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 1 contract
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing For so long as a Member is a member of the equipment, support services, personnel, management, administrationCompany, and other items for one (1) year thereafter, each Member on behalf of itself and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition its Affiliates hereby covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during it will not, directly or indirectly, engage in direct competition with the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement, except Company in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(bCompany’s “court and commercial newspaper” business (as that term is commonly understood in the industry) hereofwithin the State of Michigan (the “Territory”); provided, Practice however, that the foregoing restrictions shall not directly prohibit a Member or indirectly own (excluding ownership any of its Affiliates from owning less than five percent (5%) of any class of equity security in a publicly held company. Notwithstanding the equity of any publicly traded entity)foregoing, manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (a) the Members acknowledge that (i) having to do with the provisionAmerican Servicing Corporation, distributiona Michigan corporation, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type ATI Holdings, Inc. (f/k/a Attorneys Title, Inc.), a Michigan corporation, (iii) Network Title Solutions, LLC, a Michigan limited liability company, (iv) Warranty Title Agency, LLC, a Michigan limited liability company, and (v) Attorneys Title Agency, LLC, a Michigan limited liability company, are Affiliates of service Legal Press and agree that the ownership and operation of those companies by an Affiliate of Legal Press shall not be a violation by Legal Press of this Section 7.1; (b) the Members acknowledge that Michigan Lawyers Weekly, Inc., a Delaware corporation (“MLW”), is an Affiliate of Dxxxx and that American Processing Company, LLC, a Michigan limited liability company (“APC”), may become an Affiliate of Dxxxx and agree that the ownership and operation of those companies by an Affiliate of Dxxxx shall not be a violation by Dxxxx of this Section 7.1, except that Dxxxx agrees that MLW and APC will not publish foreclosure or product public notices in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreement.
Territory; (c) The written Employment Agreements described in the provisions of this Section 5.1 hereof 7.1 shall contain covenants of Physician-Shareholder whereby they agree not be binding on Legal Press or its Affiliates after December 31, 2015 if Legal Press has ceased to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
be a Member before that date; and (d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any Operating Agreement (or otherwise) will prohibit or affect the other damages to which it is entitled as a result of Practice's breach. If any provision business operations of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area Members or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceabletheir respective Affiliates.
Appears in 1 contract
Samples: Operating Agreement (Dolan Media CO)
Noncompetition. Practice hereby recognizes and Executive acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and (i) Executive performs services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary important nature for the protection of Business ManagerCompany, and that Business Manager Executive’s performance of such services to a competing business may result in irreparable harm to the Company Group, (ii) Executive is a member of the executive and management personnel of the Company Group, (iii) Executive has had and will continue to have access to Confidential Information (as defined below) and trade secrets which, if disclosed, would not unfairly and inappropriately assist in competition against the Company Group, (iv) in the course of Executive’s employment by a competitor, Executive could use or disclose such Confidential Information and trade secrets, (v) members of the Company Group have entered into this Management Services Agreement without the following covenants:
substantial relationships with their customers and Executive has had and will continue to have access to these customers, and (avi) During the Term of this Management Services Agreement Executive has generated and except will continue to generate goodwill for the performance Company Group in the course of Medical Services Executive’s employment. Accordingly, during the Employment Term and ancillary services at for 12 months following the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated byTermination Date, or subject toduring such longer period (not to exceed 18 months) that Executive is receiving severance benefits under the Severance Plan or Section 6(c) above, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and Executive agrees that during the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services AgreementExecutive will not, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity)indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise be associated withotherwise, lend funds toand whether or not for compensation) or render services to any person, lend its name toin whatever form, or maintain any interest whatsoever engaged in a Competing Business in any enterprise (i) having to do with the provision, distribution, promotion or advertising locale of any type of management or administrative services or products to third parties country in competition with Business Manager; and/or (ii) offering any type of service or product in which the Practice Territory to third parties similar to those offered by Business Manager to PracticeCompany Group conducts business. Notwithstanding the above restrictionforegoing, nothing herein shall prohibit Practice or Executive from being a passive owner of not more than four and ninety nine one hundredths percent (4.99%) of the equity securities of a publicly traded corporation engaged in a business that is in competition with the Company Group, so long as Executive has no active participation in the business of such corporation. For purposes of this Agreement, the term “Competing Business” shall mean (x) any business that (A) is engaged primarily in the design and/or delivery of customized software solutions to third party customers and/or (B) is engaged primarily in the provision of information technology consulting services to third party customers (that is in each case competitive with the Company Group), and/or (y) for the avoidance of doubt, any of the following (including any affiliates thereof, any successor entities thereto and any businesses or divisions divested therefrom): Accenture PLC*, Aricent Inc., Boston Consulting Group*, Deloitte & Touche LLP*, Ciklum ApS, CapGemini SE, CGI Group Inc., Cognizant Technology Solutions Corporation, DXC Technology Company, Elephant Ventures, LLC, EPAM Systems, Inc., Equal Experts Inc., Globant LLC, HCL Technologies Limited, Hexaware Technologies Limited, International Business Machines Corp., Infosys Limited, iSoftStone Holdings Limited, KPMG US LLP*, McKinsey & Company*, Mindtree Limited, NearForm Ltd, Ness Technologies Inc., Persistent Systems Ltd., Perficient, Inc., PricewaterhouseCoopers LLP*, Sapient Corporation, SoftServe, Inc., Symphony Teleca Corporation, Tech Mahindra Limited, RazorFish, LLC, Three Pillar Global, Inc., VanceInfo Technologies Inc., Wipro Limited, Xebia Nederland B.V.1 For the avoidance of doubt, Competing Business shall not include software product companies that offer customized solutions for such products and are not competitive with the Company or its holders from providing management and administrative Subsidiaries with respect to provision of information technology services to third party customers. As used herein, “competitive with the Company or its or their own medical practices after Subsidiaries” means the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court same or similar solutions or services of competent jurisdiction to be unenforceable due to an excessive time period, geographic area the Company or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceableits Subsidiaries.
Appears in 1 contract
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During Executive agrees that while employed by the Term Company and for a three year period following the termination of this Management Services Agreement and except such employment, Executive will not, without the prior written consent of the Board of Directors of the Company, directly or indirectly: (i) own, manage, operate, control or participate in, or be associated with as a director, officer, shareholder, partner, joint venturer, employee, consultant or otherwise, any business which provides medical transcription services or any other services provided or performed by the Company during the term of Executive's employment, which compete, directly or indirectly, with the Company in any city or other geographic area where any business is carried on by the Company or any of its subsidiaries within the twelve month period immediately preceding the termination of his employment (a "Prohibited Business"); (ii) become financially interested in any person or entity engaged in any such Prohibited Business; (iii) employ or solicit any employee of the Company either to work for him personally or on behalf of any other person or entity whether or not engaged in a Prohibited Business; or (iv) solicit any client or customer of the Company with which Executive had substantial contact or oversight responsibility within the twelve month period immediately preceding the termination of his employment for the performance provision of Medical Services and ancillary services at constituting a Prohibited Business. Notwithstanding the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writingforegoing, Practice Executive shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed be deemed to by Business Manager in writing, Practice shall not establish, operate or engage be engaged in a Dispensary Prohibited Business at solely by reason of his ownership of not more than 5% of any other office or facilityclass of securities registered under the Securities Act of 1933, as amended, even if the issuer of such class of securities is engaged in a Prohibited Business.
(b) Except as specifically agreed to by Business Manager in writingIn connection with the foregoing provisions of this Section 3, Practice commits the Executive represents that his experience, capabilities and circumstances are such that such provisions will not prevent him from earning a livelihood. The Executive further agrees that during the Term of limitations set forth in this Management Services Agreement Section 3 (including, without limitation, any time or territorial limitations) are reasonable and properly required for a period of five (5) years from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) adequate protection of the equity businesses of any publicly traded entity), manage, operate, control, the Company and its subsidiaries. It is understood and agreed that the covenants made by the Executive in this Section 3 shall survive the expiration or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory Executive acknowledges and agrees that a remedy at law for one (1) year after termination any breach or threatened breach of the employment agreementprovisions of this Section 3 would be inadequate and, except in therefore, the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges Executive agrees that the provisions in Section 5.6 hereof Company and this Section 5.7 are designed any of its subsidiaries shall be entitled to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, seek injunctive relief in addition to any other available rights and remedies in cases of any such breach or threatened breach; provided, however, that nothing contained herein shall be construed as prohibiting the Company or any of its subsidiaries from pursuing any other rights and remedies available under this Management Services Agreement at law for any such breach or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's threatened breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 1 contract
Samples: Covenant Not to Compete and Severance Agreement (MRC Group)
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During Shareholder, Parent, the Term Company and Merger Sub agree that, due to the nature of this Management Services Agreement Shareholder's association with the Company and except for its subsidiaries, Shareholder has: (i) acquired valuable trade secrets and other confidential and proprietary information relating to the performance of Medical Services Business and ancillary services at (ii) acquired the Office as contemplated by this Management Services Agreement or as expressly agreed ability to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within control and direct the Practice Territory. During the Term of this Management Services Agreement and except for the operation goodwill of the Dispensary Business. Shareholder acknowledges that such intellectual property and goodwill is crucial to the success, profitability and viability of the Company's Business at Offices contemplated byand will continue to be so after the Closing. Shareholder further agrees that Shareholder's disclosure or unauthorized use of such information or redirection of goodwill will cause substantial loss and harm to the Company, or subject toits subsidiaries and Parent and its Subsidiaries. In light of the foregoing, the parties also agree that the covenants set forth in this Management Services Agreement or as expressly agreed are necessary to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facilityprotect the entire goodwill and value of the intellectual property of the Company through and following the Merger.
(b) Except as specifically agreed to by Business Manager in writingDuring the period commencing at the Closing and ending five years later (the "RESTRICTED PERIOD"), Practice commits and Shareholder agrees that during the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services AgreementShareholder shall not, except anywhere in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereofBusiness Area (as defined below), Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity)indirectly, own, manage, operate, join, control, participate in, or be connected with (as a stockholder, partner, member, investor, lender (treating, for purposes of this Section 2(b), any donation as if it were a loan if the Shareholder actually knows, at the time of making the donation, that its proceeds will be used for a purpose that, if made as a loan, would be prohibited by this Section 2(b)), guarantor, or credit enhancer), or provide consultative services or otherwise be associated withprovide services to (whether as an employee or consultant, lend funds towith or without pay), lend its name toany business, individual (including, without limitation, any relative of the Shareholder), corporation, limited liability company, partnership, firm or other entity that is then, or maintain any interest whatsoever in any enterprise (i) having to do with Shareholder's actual knowledge intends to be, a competitor of the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice Company or any of its holders from providing management Subsidiaries, including any individual or entity then engaged, or to Shareholder's actual knowledge is intending to engage, in the Business (each such individual or entity is referred to herein as a "COMPETITOR"); provided, however, that notwithstanding the restrictions set forth in this Section 2(b), the Shareholder may (i) own, directly or indirectly, solely as a passive investment, securities of any entity in competition with the Business where equity securities are traded on any national securities exchange, provided that Shareholder is not a controlling person of, or a member of a group which controls, such entity and administrative services to its does not, directly or their own medical practices after the termination of this Management Services Agreement.
indirectly, "beneficially own" (c) The written Employment Agreements described as defined in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination Rule 13d-3 of the employment agreementSecurities Exchange Act of 1934, except as amended) five percent (5.0%) or more of any class of securities of such entity; and (ii) be an investor, partner, member, director or principal of a private equity firm, venture capital firm, or hedge fund that makes investments in a Competitor, provided that Shareholder completely recuses himself from selecting, advising or managing the event Physician terminates investment in any such agreement for Physician Cause or certain buyout rights are exercisedCompetitor.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 1 contract
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During The Executive agrees that, except in accordance with his duties under this Agreement on behalf of the Term Company, he will not during the term of this Management Services Agreement and except for Agreement: Participate in, be employed in any capacity by, serve as director, consultant, agent or representative for, or have any interest, directly or indirectly, in any enterprise which is engaged in the performance business of Medical Services and ancillary distributing, selling or otherwise trading in products or services at which are competitive to any products or services distributed, sold or otherwise traded in by the Office as contemplated by this Management Services Agreement Company or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within any of its subsidiaries during the Practice Territory. During the Term of this Management Services Agreement and except for the operation term of the Dispensary Business at Offices contemplated byExecutive's employment with the Company, or subject towhich are competitive to any products or services being actively developed, this Management Services Agreement with the bona fide intent to market same, by the Company or as expressly agreed to by Business Manager in writingany of its subsidiaries during the term of the Executive's employment with the Company; In addition, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and the Executive agrees that during the Term of this Management Services Agreement and for a period of five (5) two years from after the termination date end of the term of this Management Services Agreement, except in Agreement (unless the event Practice terminates Company breaches this Management Services Agreement for cause pursuant by failing to Section 7.2(b) pay to the Executive all sums due him under the terms hereof, Practice in which event the following provisions of this Section 15.A shall be inapplicable), the Executive shall observe the covenants set forth in this Section 15 and shall not own, either directly or indirectly own (excluding ownership or through or in conjunction with one or more members of less his or his spouse's family or through any trust or other contractual arrangement, a greater than five percent (5%) of the equity of any publicly traded entity), manage, operate, controlinterest in, or otherwise be associated withcontrol either directly or indirectly, lend funds toany partnership, lend its name tocorporation, or maintain other entity which distributes, sells, or otherwise trades in products which are competitive to any interest whatsoever products or services being developed, distributed, sold, or otherwise traded in any enterprise (i) having to do with by the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice Company or any of its holders from providing management and administrative services to its or their own medical practices after subsidiaries, during the termination term of this Management Services Agreement, or being actively developed by the Company or any of its subsidiaries during the term of this Agreement with the Company with a bona fide intent to market same. Executive further agrees, for such two-year period following termination, to refrain from directly or indirectly soliciting Company's vendors, customers or employees, except that the Executive may solicit the Company's vendors or customers in connection with a business that does not compete with the Company or any of its subsidiaries.
(cb) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not Executive hereby agrees that damages and any other remedy available at law would be inadequate to compete with Practice within redress or remedy any loss or damage suffered by the Practice Territory for one (1) year after termination Company upon any breach of the employment agreementterms of this Section 15 by the Executive, except in and the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges Executive therefore agrees that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7Company, in addition to recovering on any claim for damages or obtaining any other remedies remedy available under at law, also may enforce the terms of this Management Services Agreement at law section 15 by injunction or specific performance, and may obtain any other appropriate remedy available in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 1 contract
Noncompetition. Practice hereby recognizes At all times commencing on the date first written above and acknowledges that -------------- Business Manager will incur substantial costs in providing extending for a period which equals the equipment, support services, personnel, management, administration, and other items and services that are the subject matter longer of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
three (b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement and for a period of five (53) years from the termination date first written above, or (b) the entire duration for which Employee may exercise any option under the Stock Option Agreements, including any applicable time extensions, the Employee will not engage in "Competition" (as defined below) with the Company anywhere in the world. For purposes of clarification only, the "entire duration for which Employee may exercise any option under the Stock Option Agreements, including any applicable time extensions," shall be deemed expired if Employee exercises every option Employee is granted under the Stock Option Agreements, in accordance with the terms of such agreements. For purposes of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof"Competition" shall mean engaging in, Practice shall not or otherwise directly or indirectly own (excluding ownership being employed by, or acting as an advisor, manager, consultant or lender to, or being a director, officer, employee, contractor, principal, agent, stockholder, member, owner or partner of, or permitting the Employee's name to be used in connection with the activities of less any other business or organization engaged other than incidentally in making investments in privately-held companies in the areas of nanotechnology, microsystems and/or microelectromechanical systems; provided, however, that it shall not be a violation of this Section 1 for the Employee to become the registered or beneficial owner of up to five percent (55.0%) of any class of the equity capital stock of an entity in Competition with the Company that is registered under the Securities Exchange Act of 1934, as amended, provided that the Employee does not otherwise participate in the business of such corporation. For purposes of clarification only, Employee shall not be deemed to be engaged in Competition by investing in or being employed by or on the board of an operating company that is not ordinarily in the business of making investments in privately-held companies in the areas of nanotechnology, microsystems and/or microelectromechanical systems. The Company, in its sole discretion, may waive in writing any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having all of Employee's obligations under this Section 1 upon a majority vote of the Board of Directors of the Company authorizing it to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreementso.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 1 contract
Samples: Nonsolicitation and Noncompetition Agreement (Harris & Harris Group Inc /Ny/)
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During Except as set forth in Section 7.6(g) hereof, each Active Principal Seller agrees that unless (i) in the Term of this aggregate the Funds have at least $1 billion in Assets Under Management Services Agreement and except for (the performance of Medical Services and ancillary services at “Funds Capacity Benchmark”) or (ii) the Office Company terminates either an Active Principal Seller or BAM as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation member of the Dispensary Company without Cause (as that term is defined in the Amended LLC Agreement), (x) such Active Principal Seller shall devote as much of his professional time as is commercially reasonable to manage BAM and to provide investment management services to the Funds and (y) neither such Active Principal Seller nor any of its Affiliates shall, without the prior written consent of the Purchaser (which consent may be withheld in the Purchaser’s sole and absolute discretion):
(i) engage, either directly or indirectly, as a principal, employee or for its own account or solely or jointly with others, in any business that competes with the Business at Offices contemplated byas it exists on the Closing Date;
(ii) give information or financial assistance to, or subject tomake any investment in, this Management Services Agreement any business or activity that competes with the Business as expressly agreed to by Business Manager in writingit exists on the Closing Date; or
(iii) solicit for hire or hire, Practice shall or solicit for hire or hire on behalf of any third party, any individual who is or has been a management employee of the Company or any of its present or future Subsidiaries or BAM, unless and until such management employee has not establishbeen an employee of any of the Purchaser, operate or engage in a Dispensary Business the Company, BAM and their respective Subsidiaries for at any other office or facilityleast 12 months.
(b) Except as specifically agreed to by Business Manager set forth in writingthis subparagraph (b) or in Section 7.6(g), Practice commits and unless the Company terminates an Active Principal Seller or BAM as a member of the Company without Cause (as defined in the Amended LLC Agreement), each Active Principal Seller agrees that during neither he nor any of his Affiliates shall, without the Term prior written consent of the Purchaser (which consent may be withheld in the Purchaser’s sole and absolute discretion) permit any investor in any of the Funds as of the first date the Funds Capacity Benchmark is met (the “Benchmark Date”) to be an investor in any other fund or similar vehicle affiliated with the Active Principal Sellers unless such investor is also an investor in the Fund in an amount no less than the amount invested as of the Benchmark Date.
(c) After the Funds (on a combined basis) reach the Funds Capacity Benchmark, if any Active Principal Seller or its Affiliates create or manage a fund or similar investment vehicle with the same or similar strategy, then at any time the Funds’ Assets Under Management fall below the Funds Capacity Benchmark, it is agreed that the Active Principal Sellers will include in the calculation of Applicable AUM, Funds Capacity Benchmark and Sharing Percentage (as defined in the Amended LLC Agreement) Assets Under Management from such other fund or investment vehicle (paying the same management fees and incentive allocation or fees as the assets found in the Funds, unless such requirement is waived by the Purchaser) as is required so that the Funds’ Assets Under Management again reaches the Applicable AUM and Funds Capacity Benchmark.
(d) The Purchaser hereby consents to, after the Closing, BAM advising separately managed accounts that have an initial investment of more than twenty-five million dollars ($25,000,000) (and, for avoidance of doubt, in calculating the initial investment for such separately managed account BAM cannot aggregate separately managed accounts of multiple investors investing less than twenty-five million dollars ($25,000,000)); provided, however, that:
(i) the Active Principal Sellers, BAM and their Affiliates shall not solicit, or in any manner encourage, any investor that qualifies to be an investor in any Fund to invest in a separately managed account;
(ii) in all cases, such separately managed accounts shall not be included in the calculation of the Funds Capacity Benchmark; and
(iii) so long as the Funds, collectively, have not achieved the Funds Capacity Benchmark, the Funds shall remain open to additional investors and to new investments. If any Fund is closed to new investors, or is no longer accepting new investments, and the Funds, collectively, have not achieved the Fund Capacity Benchmark, then the Active Principal Sellers agree that BAM shall not accept or advise newly created separately managed accounts of any kind (but may accept additional managed account investments by existing separately managed account clients in existing separately managed accounts). Additionally, the Purchaser hereby agrees that it will not participate in fees provided to the Company from separately managed accounts that exist at the time of the Closing, as set forth in Section 7.6(d) of the Company Disclosure Letter, and, subject to the terms of this subparagraph, it will not participate in fees provided to the Company from separately managed accounts of more than twenty-five million dollars ($25,000,000) entered into in the future by BAM; provided, however, that BAM may advise a separately managed account for the Bank of America platform in an amount less than twenty-five million dollars ($25,000,000) until June 30, 2011, at which time: i) if the Assets Under Management Services Agreement in such separately managed account are less than twenty-five million dollars ($25,000,000), the account shall no longer be excluded from the calculation of Applicable AUM for the Funds and the Purchaser shall be entitled to participate in fees as provided in this Agreement; or ii) if the Assets Under Management in such separately managed account is equal to or greater than twenty-five million dollars($25,000,000), the account shall remain a separately managed account for which the Purchaser is not entitled to participate in fees.
(e) Upon the liquidation or otherwise closing of a Fund as a result of a decision by Xxxx Xxxxx to retire, or if Xxxx Xxxxx otherwise decides to cease to be actively engaged in managing the operations of BAM or the Funds, Xxxx Xxxxx agrees that if, within five (5) years of such Funds closing, he subsequently engages, either directly or indirectly, as a principal, employee or for his own account or solely or jointly with others, or organizes or otherwise advises, for his own account or for others another fund or investment vehicle or account of substantially the same investment style as the Funds, the Purchaser will be granted the same voting, economic and other rights flowing from such other fund or investment vehicle or account as though it was the Funds. Xxxx Xxxxxx agrees that if he retires or otherwise ceases to be actively engaged in managing the operations of BAM or the Funds, he shall not engage either, directly or indirectly, as a principal, employee or for his own account or solely or jointly with others, in any business that competes with BAM for a period of one (1) year, and he agrees that the track record of the Funds (individually or in the aggregate) shall remain the property of such Fund and he shall not have the right to use or market such track record.
(f) Additionally, the Exiting Principal Sellers agree, for a period of three (3) years from the earlier to occur of the Closing Date or the Benchmark Date, that each Exiting Principal Seller shall not engage in, either directly or indirectly, as a principal, employee, or solely or jointly with others, another fund or investment vehicle that charges management fees and/or incentive allocations or fees for the provision of investment advice and has the same investment style (as defined below) as the Funds. Furthermore, the Exiting Principal Sellers agree for a period of five (5) years from the termination date of this Management Services Agreement, except Closing Date (i) not to use “Brownstone Asset Management” or “Brownstone Partners Catalyst Fund” in the event Practice terminates this Management Services Agreement name of, or relating to, any fund, investment vehicle that charges management fees and/or incentive allocations or fees for cause pursuant the provision of investment advice, (ii) not to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity), manage, operate, controlpromote, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever reference the track record of the Funds in any enterprise marketing or any investment document for any fund, investment vehicle that charges management fees and/or incentive allocations or fees for the provisions of investment advice which the Exiting Principal Sellers may, directly or indirectly, own, control or otherwise become associated with in any capacity, and (iiii) having to do shall not receive fees or any other compensation from any current Client of the Funds without the prior consent of the Purchaser. For the purposes of this Agreement, the phrase “the same investment style” shall mean the investment in distressed and high yield securities either long or short or both with the provisionsame style and investment objectives as the Funds, distributionand having a portfolio of such securities in excess of fifteen (15) holdings at any one time. For the avoidance of doubt, promotion or advertising the Exiting Principal Sellers are free of any type of management restrictions relating to investing or administrative services or products to third parties in competition with Business Manager; and/or trading for (iiI) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice their broker dealer entities or any of its holders from providing their Affiliates with the same investment style as the Funds, so long as they do not provide management and administrative services to its in exchange for any form of management fee and/or incentive allocation or fee, (II) their own medical practices after accounts, or (III) the termination investment accounts of this Management Services Agreementtheir Immediate Family.
(cg) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within Active Principal Sellers acknowledge that the Practice Territory for one (1) year after termination Purchaser is relying on the good faith efforts of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant Active Principal Sellers to ------------ which the employees agree not continue to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager operate BAM and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwiseFunds. Additionally, nothing the Exiting Principal Sellers acknowledge that the Purchaser is relying on the Exiting Principal Sellers to abide by the terms and conditions set forth in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breachSection 7.6(f). If any provision contained in this Section 7.6 shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Section, but this Section shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. It is the intention of the parties that if any of the restrictions or covenants contained herein is held to cover a geographic area or to be for a length of time which is not permitted by Applicable Law, or in any way construed to be too broad or to any extent invalid, such provision shall not be construed to be null, void and of no effect, but to the extent such provision would be valid or enforceable under Applicable Law, a court of competent jurisdiction shall construe and interpret or reform this Section to be unenforceable due to an excessive provide for a covenant having the maximum enforceable geographic area, time period, geographic area or restricted activity, the covenant period and other provisions (not greater than those contained herein) as shall be reformed to comply with valid and enforceable under such time period, geographic area or restricted activity Applicable Law. The Sellers acknowledge that the Purchaser would be held enforceableirreparably harmed by any such breach of this Section and that there would be no adequate remedy at law or in damages to compensate the Purchaser for any such breach. The Sellers agree that the Purchaser shall be entitled to injunctive relief requiring specific performance by the Sellers of this Section, and the Seller consents to the entry thereof.
Appears in 1 contract
Noncompetition. Practice hereby recognizes (a) For the period beginning on the Effective Date and acknowledges that -------------- Business Manager will incur substantial costs ending on the [*] anniversary thereof (the "RESTRICTION PERIOD"), neither Selling Parties nor any subsidiary, sister entity, or parent will, directly or indirectly, either as a partner or owner or in providing the equipment, support services, personnel, management, administration, and any other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenantscapacity:
(ai) During engage in the Term homebuilding or home sales business within 100 miles of this Management Services Agreement and except the Las Vegas metropolitan area (a "COMPETING BUSINESS");
(ii) recruit, hire or discuss employment for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement a Competing Business with any person who is, or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During six month period preceding the Term date of this Management Services Agreement and except for the operation such activity was, an employee of the Dispensary Company or Meritage (other than as a result of a general solicitation for employment); or
(iii) solicit any customer or supplier of the Company for a Competing Business at Offices contemplated by, or subject to, otherwise attempt to induce any such customer or supplier to discontinue its relationship with the Company. [*] Confidential information on this Management Services Agreement or as expressly agreed page has been omitted and filed separately with the Securities and Exchange Commission pursuant to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facilityConfidentiality Treatment Request.
(b) Except as specifically agreed Selling Parties represent to by Business Manager the Company and Meritage, and Selling Parties acknowledge, that:
(i) they are willing and able to engage in writing, Practice commits and agrees a business that during is not a Competing Business;
(ii) enforcement of the Term of restrictions set forth in this Management Services Agreement and for a SECTION 1 would not be unduly burdensome to Selling Parties;
(iii) the period of five time provided for in this SECTION 1 and the territorial restrictions and other provisions and restrictions set forth herein are reasonable and necessary to protect the Company and its successors and assigns in the use and employment of the goodwill of the business conducted by Perma-Bilt Homes prior to the Effective Date; and
(5iv) years from damages cannot compensate the termination date of this Management Services Agreement, except Company in the event Practice terminates of a violation of this Management Services Agreement SECTION 1, and that if such violation should occur, injunctive relief shall be essential for cause pursuant the protection of the Company and its successors and assigns. Accordingly, Selling Parties hereby covenant and agree that, in the event any of the provisions of this SECTION 1 shall be violated or breached, the Company shall be entitled to Section 7.2(b) hereofobtain injunctive relief against the party or parties violating such covenants, Practice without bond but upon due notice, in addition to such further or other relief as may be available at equity or law. Obtainment of such an injunction by the Company shall not directly be considered an election of remedies or indirectly own (excluding ownership of less five percent (5%) of the equity a waiver of any publicly traded entity), manage, operate, control, right to assert any other remedies which the Company has at law or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising equity. No waiver of any type of management breach or administrative services violation hereof shall be implied from forbearance or products failure by the Company to third parties take action thereof. Zenith agrees to pay any and all reasonable costs and expenses, including attorneys' fees, incurred by the Company in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of enforcing this Management Services provision if it is determined that Selling Parties breached this Agreement.
(c) The written Employment Agreements described Selling Parties hereby agree that upon becoming a partner, member, owner or investor of another enterprise or any third-party during the period in Section 5.1 hereof which the terms of this SECTION 1 are in effect, each shall contain covenants promptly disclose to such new enterprise or third-party the terms of Physicianthis SECTION 1, and shall cause such enterprise or third-Shareholder whereby they party to maintain such information in confidence. Selling Parties further agree not and authorize the Company to compete with Practice within the Practice Territory for one (1) year after termination notify others, including customers of the employment agreementCompany and any such future enterprise or third-party to which either Zenith or Seller may become a partner, except in member, owner or investor, of the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercisedterms of this SECTION 1 and of their obligations hereunder.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees Selling Parties hereby agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions period of time in Section 5.6 hereof and which this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, SECTION 1 is in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager effect shall be entitled extended for a period equal to enforce the duration of any breach of this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.SECTION 1(A)
Appears in 1 contract
Noncompetition. Practice hereby recognizes The Executive acknowledges and acknowledges agrees that -------------- Business Manager by virtue of his employment with the Company, he has or will incur substantial costs in providing have access to valuable proprietary information not known to the equipmentpublic that the Company possesses, support servicesincluding but not limited to, personnelmethods of operation, managementbusiness strategies and plans, administrationfinancial information, marketing materials, ideas, trade secrets, customer contacts and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposedcustomer information (“Proprietary Information”). The parties also recognize Executive further acknowledges and agrees that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges Company has legitimate business interests in assuring that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation his unique knowledge of the Dispensary Business at Offices contemplated byCompany, including but not limited to that knowledge regarding and relating to the foregoing information, is not disclosed or subject to, this Management Services Agreement converted to the use of entities or as expressly agreed to by Business Manager individuals in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and competition with the Company. The Executive therefore agrees that during the Term of this Management Services Agreement Employment Period and for a period of five (5) years from one year after the termination date of this Management Services Agreementtermination of the Executive’s employment with the Company without cause as set forth in Article 3.1(a) above, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereofhe will not, Practice shall not directly or indirectly own (excluding indirectly, compete with the Company or its subsidiaries or affiliates by providing services or by being an officer, director, employee, consultant, agent, advisor, shareholder or owner to or of any other person, partnership, association, corporation, or other entity that is a “Competing Business,” except that he may have an ownership interest of less five up to two percent (52%) of a Competing Business which is a public company. As used herein, a “Competing Business” is any business whose activities relate to the equity products or services of any publicly traded entity)the same or similar type as the products or services which are sold (or, pursuant to an existing business plan, will be sold) to paying customers of the Company or its subsidiaries or affiliates, and for which the Executive has the responsibility to plan, develop, manage, operate, controlmarket, or otherwise be associated with, lend funds to, lend its name tooversee, or maintain had any interest whatsoever in any enterprise such responsibility within the Executive’s most recent twenty-four (i24) having to do months of employment with the provisionCompany. Following termination of employment, distributionthe Executive may request in writing an exception to the foregoing provision from the Company for prospective employment, promotion which exception will be granted if the Company, in its sole discretion, determines that such prospective employment will not unduly or advertising materially compete with or otherwise interfere with the business of the Company. In addition to the foregoing, the Executive agrees that, for a period of one year after the date of termination or cessation of the Executive’s employment with the Company for any type of management reason whatsoever, he will not, directly or administrative services indirectly, intentionally entice, induce or products solicit, or attempt to third entice, induce or solicit, any individual or entity having a current or prospective business relationship with the Company, whether as a consultant, client, customer or otherwise, to terminate or cease such relationship with the Company, or to fail to enter into or renew such relationship with the Company. The parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding agree that the above restrictionrestrictions on competition are completely severable and independent agreements supported by good and valuable consideration and, nothing herein as such, shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after survive the termination of this Management Services Agreement.
(c) Agreement for whatever reason. The written Employment Agreements described in Section 5.1 hereof parties further agree that any invalidity or unenforceability of any one or more of such restrictions on competition shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause render invalid or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches unenforceable any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwiseremaining restrictions on competition. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by should a court of competent jurisdiction determine that the scope of any provision of this Article 4.1 is too broad to be unenforceable due to an excessive time period, geographic area or restricted activityenforced as written, the covenant shall parties intend that the court reform the provision to such narrower scope as it determines to be reformed reasonable and enforceable. The Executive acknowledges and agrees that the non-competition and non-solicitation provisions herein are expressly assignable to comply with such time period, geographic area or restricted activity that would be held enforceableany successor of the Company as set forth in Article 6(b).
Appears in 1 contract
Samples: Employment Agreement (Alion Science & Technology Corp)
Noncompetition. Practice Stockholder recognizes that to assure Buyer that Buyer will retain the value of MDI as a "going concern," it is necessary, upon the terms and subject to the conditions hereof, that Stockholder undertakes not to utilize its special knowledge of the business of MDI and its Subsidiaries and their relationships with customers and suppliers of MDI and its Subsidiaries to compete with Buyer or MDI or its Subsidiaries. Stockholder hereby recognizes and acknowledges agrees that -------------- Business Manager will incur substantial costs it shall, for a period from the Closing Date until the third anniversary thereof (such aggregate period being hereinafter referred to as the "Covenant Period") refrain from, anywhere within a 30-mile radius of any fixed site or any stop on any mobile route at which MDI conducts business as of the date of this Agreement, or has conducted business prior to the Closing Date, directly or indirectly, owning, managing, operating, controlling or financing, or participating in providing the equipment, support services, personnelownership, management, administrationoperation, and control or financing of, or being connected with or having any interest in, or otherwise taking any part as a stockholder, director, officer, employee, consultant, independent contractor, partner or otherwise in any mobile or fixed diagnostic imaging business competitive with that engaged in by MDI as of the Closing Date, including providing mobile radiology, MRI, CT or other items and mobile or fixed diagnostic imaging services that are (the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement"Competitive Business"); provided, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practiceshowever, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice foregoing shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within apply solely to the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five not more than two percent (52%) of the equity outstanding capital stock of any publicly traded entity)company listed by a national securities exchange or an over-the-counter stock listed by the National Association of Securities Dealers; and, manageprovided, operatefurther, controlthat the foregoing shall not restrict Stockholder from acquiring, owning, managing, operating, financing and controlling a Competing Business to the extent the Competing Business (A) is part of (or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise a subsidiary of) an entity acquired by Stockholder which (i) having to do with the provision, distribution, promotion on a consolidated basis derives less than 20% of its revenues from a Competing Business or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering on a consolidated basis derives less than half of its revenues from a Competing Business, so long as such Competing Business is disposed of within one year of its acquisition and does not increase the number of units operated by such Competing Business and (B) does not in any type manner solicit or accept referrals from radiologists who refer business to MDI and its Subsidiaries; and, provided, further, that the foregoing shall not restrict the activities of service any entity or product in its Affiliates which may acquire the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice whole or any part of Stockholder or any of its holders from providing management Subsidiaries provided that such entity or its Affiliates (x) is a Competing Business at the time of such acquisition, (y) does not use in any manner any confidential or proprietary information of MDI or any of its Affiliates and administrative services to (z) does not use any assets or other resources of Stockholder or any of its or their own medical practices after the termination of this Management Services AgreementAffiliates in connection with any Competing Business.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 1 contract
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During Executive acknowledges that her relationship with Comdial and its affiliates will give her access to valuable confidential and proprietary information and expertise not generally known in the Term industry in which Comdial and its affiliates are engaged (including information conceived, originated, discovered or developed by Executive) relating to the tele- communications, telephone systems and computer telephony products and business of Comdial (the "Business"), including, without limitation, the following: technical know-how; lists of previous, present and prospective venture partners, investors, and lenders; credit information; sources of supply; business plans, proposals and summaries; private processes, techniques and formulae; research and development activities and data; inventions; and other aspects of the affairs and business operations of Comdial and its affiliates as they exist on the date hereof (or as they may from time to time exist during the term of this Management Services Agreement and except for Agreement). If used to the performance benefit of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage company engaging in a Dispensary Business at any other office or facilitybusiness similar to the Business, such information would prejudice the interests of Comdial.
(b) Except In view of the foregoing, as specifically agreed a material inducement to by Business Manager in writingComdial to enter into this Agreement, Practice commits and Executive hereby agrees that neither Executive nor any entity controlled by or otherwise affiliated with Executive shall, during the Employment Term and thereafter during the Post Employment Period (defined in Section 7(c) of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement), except for duties to be performed by Executive as an employee of Comdial, in any manner, directly or indirectly, own, manage, operate, control, be employed by, consult with, participate in or be connected in any manner with the ownership, management, operation or control of any sole proprietorship, partnership, corporation or other entity (A) which competes with Comdial or its affiliates in the event Practice terminates this Management Services Agreement development, manufacture or sale of (1) any product sold or service rendered by Comdial or any of its affiliates as of the date the Employment Term is terminated, or (2) any product in active development by Comdial prior to the date on which the Employment Term is terminated (the active development of any product to be established by verifiable dollars being spent in such product"s development) in any country where Comdial then conducts business, or (B) which calls upon, solicits, diverts or takes away any of the then existing customers or patrons of Comdial for the purpose of causing or attempting to cause pursuant any such person to Section 7.2(bpurchase products sold or services rendered by Comdial or any of its affiliates from any person other than Comdial or its affiliates or otherwise diverts business from Comdial. Nothing contained in the foregoing sentence shall be construed as preventing Executive (i) hereoffrom owning, Practice shall not directly or indirectly own (excluding ownership of solely for passive investment, less than five percent (5%) of the equity stock of any publicly traded entity), manage, operate, controlentity registered on a recognized stock exchange, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering from engaging in any type business activity if Executive"s employment is terminated by Comdial prior to the expiration of service or product the Employment Term without Cause. Executive agrees that the specified duration of the covenants set forth in this Section 7 shall be extended by and for the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or term of any period during which Executive is in violation of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreementany such covenant.
(c) The written For purposes of this Section 7, the term "Post Employment Agreements described in Section 5.1 hereof Period" shall contain covenants mean a period of Physician-Shareholder whereby they agree not to compete with Practice within time extending from the Practice Territory for one (1) year after termination end of the employment agreementEmployment Term for the number of years set forth below, except in depending on the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination length of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands Employment Term: Length of Employment Post Employment Term Period Less than 1 year 3 years 1 year but less than 4 years 2 years 4 years and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.longer 1 year
Appears in 1 contract
Samples: Merger Agreement (Comdial Corp)
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of Parent covenants and agrees, as an inducement to Buyer to enter into this Management Services Agreement and except to consummate the Contemplated Transactions, that for a period of five years following the performance of Medical Services and ancillary services at Closing Date no Seller Company (for so long but only for so long as it remains a Seller Company) will, directly or indirectly, carry on or participate in the Office as contemplated by this Management Services Agreement ownership, management or as expressly agreed control of, or license Intellectual Property to by be used in a manner competitive with the TTS Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or any business enterprise (other than the Seller Companies' ownership interest in TTSI following Closing) that competes anywhere in the world with the TTS Business as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in it is being conducted on the Closing Date (a Dispensary Business at any other office or facility"Competing Business").
(b) Except as specifically agreed Nothing contained in this Section 5.06 shall limit or restrict the right of any Seller Company to by Business Manager hold and make investments in writingsecurities of any Person that has securities listed on a national securities exchange or admitted to trading privileges thereon or actively traded in a generally recognized over-the-counter market, Practice commits and agrees provided that during the Term aggregate equity interest therein of Seller Companies does not exceed five percent of the outstanding shares or interests in such Person at the time of Seller Companies' investment therein. Notwithstanding any provisions of this Management Services Agreement and for Section 5.06 to the contrary, if Parent or any other Seller Company acquires securities of any Person that is engaged in a period of five (5) years from the termination date Competing Business, Seller Companies shall not be deemed to be in violation of this Management Services AgreementSection 5.06, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(bprovided that (A) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with at the provision, distribution, promotion or advertising time of any type acquisition the Competing Business represents less than one-third of management or administrative services or products to third parties in competition with Business Manager; and/or the gross revenues of the acquired Person for the acquired Person's most recently completed fiscal year and (ii) offering any type Seller Companies use reasonable commercial efforts to divest the operations of service such Competing Business subsequent to such acquisition, or product in (B) at the Practice Territory to third parties similar to those offered by time of acquisition the Competing Business Manager to Practice. Notwithstanding represents less than five percent of the above restriction, nothing herein shall prohibit Practice or any gross revenues of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreementacquired Person for the acquired Person's most recently completed fiscal year.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants Parent recognizes and agrees that a breach by Seller Companies of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination any of the employment agreementcovenants and agreements in this Section 5.06 could cause irreparable harm to Buyer, except that Buyer's remedies at law in the event Physician terminates of such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain breach would be inadequate, and enforce formal written agreements with Physician-Employees and Optometrists that, accordingly, in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.event
Appears in 1 contract
Samples: Reorganization, Recapitalization and Stock Purchase Agreement (True Temper Sports Inc)
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will The “Noncompete Period” shall be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for plus the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after period immediately following termination of the Executive’s employment agreementwith the Company irrespective of the reason for, or circumstances surrounding, such termination. In consideration for the compensation payable to the Executive pursuant to this Agreement, during the Noncompete Period, the Executive will not directly, or indirectly, whether as an officer, director, stockholder, partner, proprietor, associate, employee, consultant, representative or otherwise, become, or be interested in or associated with any other person, corporation, firm, partnership or entity, engaged to a significant degree in (x) developing, manufacturing, marketing or selling pharmaceuticals directed at acute lymphoblastic leukemia, invasive fungal infections, lymphomatous meningitis, severe combined immunodeficiency, pharmaceuticals that are modified using polyethylene glycol (i.e. pegylated compounds), pegylation, locked nucleic acid compounds, pharmaceuticals targeted to the gene targets for which the Company has developed or is developing an RNA antagonist, or mannose-binding lectin, or (y) any specific technology or specific area of business in which the Company becomes involved to a significant degree during the Term. For purposes of the preceding sentence, to determine whether any entity is engaged in such activities to a “significant degree”, comparison will be made to the Company’s operations at that time. In other words, an entity will be deemed to be engaged in an activity to a significant degree if the number of employees and/or amount of funds devoted by such entity to such activity would be material to the Company’s operations at that time. The Executive is hereby prohibited from ever using any of the Company’s proprietary information or trade secrets to conduct any business, except for the Company’s business while the Executive is employed by the Company as provided in Section 5(b) hereof. The provisions contained in this Section 5(a) shall survive the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the Executive’s employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in pursuant to Section 5.6 9 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover In the event the Executive breaches any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activityset forth in this Section 5(a), the covenant running of the period of restriction set forth herein shall be reformed to comply tolled for the period during which the breach exists and recommence upon the Executive’s compliance with such time period, geographic area or restricted activity that would be held enforceablethe terms of this Section 5(a).
Appears in 1 contract
Noncompetition. Practice hereby recognizes and The Executive acknowledges that -------------- Business Manager will incur substantial costs in providing (i) the equipment, support services, personnel, management, administration, and other items and Executive performs services of a unique nature for the Company that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Managerirreplaceable, and that Business Manager the Executive’s performance of such services to a competing business will result in irreparable harm to the Company, (ii) the Executive has had and will continue to have access to Confidential Information which, if disclosed, would unfairly and inappropriately assist in competition against the Company or any of its affiliates, (iii) in the course of the Executive’s employment by a competitor, the Executive would inevitably use or disclose such Confidential Information, (iv) the Company and its affiliates have substantial relationships with their customers and the Executive has had and will continue to have access to these customers, (v) the Executive has received and will receive specialized training from the Company and its affiliates, and (vi) the Executive has generated and will continue to generate goodwill for the Company and its affiliates in the course of the Executive’s employment. Accordingly, during the Executive’s employment hereunder and the Restricted Period (as defined below), the Executive agrees that the Executive will not have entered into this Management Services Agreement without engage in any Competitive Activities (as defined below) in any basin or location in which the following covenants:
Company or its subsidiaries (a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office owns any Hydrocarbon Interests (as contemplated by this Management Services Agreement defined below) or has demonstrable plans to commence any activities or direct or indirect investment in Hydrocarbon Interests as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated byEffective Date, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except after the Effective Date and before the earlier of a Change-in-Control (as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement, except defined in the event Practice terminates this Management Services Agreement for cause pursuant Plan) and the Executive’s termination of employment, acquires or otherwise makes any direct or indirect investment in any Hydrocarbon Interests or has demonstrable plans to Section 7.2(b) hereofcommence any activities or direct or indirect investment in Hydrocarbon Interests. Notwithstanding the foregoing, Practice nothing herein shall prohibit the Executive from being a passive owner of not directly or indirectly own (excluding ownership of less five more than one percent (51%) of the equity securities of any a publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever corporation engaged in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties a business that is in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice Company or any of its holders from providing management and administrative services to its subsidiaries or their own medical practices after affiliates, so long as the termination Executive has no active participation in the business of such corporation, or owning a passive investment in any mutual, private equity or hedge fund or similar pooled investment vehicle. For the purposes of this Management Services Agreement.
, (cA) The written Employment Agreements described “Competitive Activities” shall mean owning any material interest in Section 5.1 hereof (other than through passive limited partnership interests in investment funds), participating in (whether as a director, officer, employee, member, or partner), consulting with, or rendering services for (including as an employee), or otherwise engaging in any business or enterprise whose primary business purpose or activity is (I) the acquisition, ownership, operation, finance, maintenance, exploration, production and development of Hydrocarbon Interests or (II) the sale or other disposition of such Hydrocarbon Interests, (B) “Hydrocarbon Interests” shall contain covenants mean all non-cost bearing oil and gas properties, mineral properties, mineral servitudes and/or mineral rights of Physician-Shareholder whereby they agree not any kind (including overriding royalty and royalty interests, net profits interests, oil payment interests, production payment interests and other types of mineral interests), including any rights to compete with Practice within the Practice Territory for one (1) year after termination acquire any of the foregoing and (C) “Restricted Period” means the period beginning on the Executive’s last day of employment agreement, except in with the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercisedCompany and ending on the first anniversary thereof.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 1 contract
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During Except as otherwise explicitly permitted in Section 7.4(b), from the Term of this Management Services Agreement Effective Time and except for continuing until the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation [*] anniversary of the Dispensary Business at Offices contemplated byClosing Date (the “Noncompete Period”), neither Seller nor any of its Affiliates, directly or indirectly through any licensee thereof, shall (i) engage in any Seller Competitive Activity, or subject to, this Management Services Agreement (ii) cause or as expressly agreed actively assist any other Person to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any Seller Competitive Activity. Except as otherwise explicitly permitted in Section 7.4(b), during the Noncompete Period, neither Purchaser nor any of its Affiliates, directly or indirectly through any licensee thereof, shall (i) engage in any Purchaser Competitive Activity, or (ii) cause or actively assist any other office or facilityPerson to engage in any Purchaser Competitive Activity.
(b) Except as specifically agreed to by Business Manager in writingIf, Practice commits and agrees that during the Term Noncompete Period, Seller or any of its Affiliates acquires an Entity that engages in any Seller Competitive Activity, or all or substantially all of the assets of an Entity that engages in any Seller Competitive Activity and such assets include a Seller Competitive Product, Seller or such Affiliate shall have [*] from the acquisition date in which to divest itself of such Seller Competitive Product or to otherwise cease such Seller Competitive Activity, and Seller shall not be in breach of Section 7.4(a) if it or the Affiliate, as the case may be, so divests such Seller Competitive Product or ceases such Seller Competitive Activity within such [*] period. If, during the Noncompete Period, Purchaser or any of its Affiliates acquires an Entity that engages in any Purchaser Competitive Activity, or all or substantially all of the assets of an Entity that engages in any Purchaser Competitive Activity and such assets include a Purchaser Competitive Product, Purchaser or such Affiliate shall have [*] from the acquisition date in which to divest itself of such Purchaser Competitive Product or to otherwise cease such Purchaser Competitive Activity, and Purchaser shall not be in breach of Section 7.4(a) if it or the Affiliate, as the case may be, so divests such Purchaser Competitive Product or ceases such Purchaser Competitive Activity within such [*] period. [*] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
(c) Because of the difficulty of measuring economic losses to Purchaser or Seller, as applicable, as a result of a breach of the restrictive covenants set forth in this Section 7.4, and because of the immediate and irreparable damage that would be caused to Purchaser or Seller, as applicable for which monetary damages would not be a sufficient remedy, the Parties agree that Purchaser or Seller, as applicable, will be entitled to seek specific performance, temporary and permanent injunctive relief, and such other equitable remedies to which it may then be entitled against Seller or Purchaser, as applicable, or any of its respective Affiliates with respect to any such breach. This Section 7.4 shall not limit any other legal or equitable remedies that Purchaser or Seller, as applicable, may have against Seller or any of its Affiliates or Purchaser or any of its Affiliates, as applicable, for violation of the restrictions of this Management Services Agreement and Section 7.4. The Parties agree that Purchaser or Seller, as applicable, shall have the right to seek relief for a period of five (5) years from the termination date any violation or threatened violation of this Management Services AgreementSection 7.4 by Seller or any of its Affiliates or Purchaser or any of its Affiliates, except as applicable, from any court of competent jurisdiction in any jurisdiction authorized to grant the relief necessary to prohibit the violation or threatened violation of this Section 7.4.
(d) In no event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(bshall the ownership by Seller (or an Affiliate thereof) hereof, Practice shall not directly or indirectly own Purchaser (excluding ownership or an Affiliate thereof) of less than five percent (5%) of the equity securities of any publicly a publicly-traded entity)company constitute a Seller Competitive Activity or a Purchaser Competitive Activity, manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreementas applicable.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 1 contract
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term term hereof, so long as the Executive remains an employee of this Management Services Agreement and except for the performance of Medical Services and ancillary services at Corporation, the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice Executive shall not establishbe employed in any capacity, operate whether directly or provide Medical Services at indirectly, by any person, firm, corporation or entity engaged in a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation business which directly competes with that of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facilityCorporation.
(b) Except as specifically agreed to by Business Manager in writingFurther, Practice commits and the Executive agrees that during if he voluntarily terminates his employment relationship with the Term Corporation in breach of this Management Services Agreement and or his employment is terminated by the Corporation for "cause" pursuant to subparagraph 6 a.(i), (ii), (iii) or (vi) hereof, then, for a period of five (5) years from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after following the date of termination of his employment with the employment agreementCorporation (the "Termination Date") (the "Noncompetition Period"), except he will not, for himself or on behalf of any person, partnership, trust, corporation or other entity other than the Corporation for whatever reason:
(1) engage, directly or indirectly (either as an employee, officer, director, partner, shareholder, consultant or independent contractor), in any business substantially similar to that carried on by the Corporation as of the Termination Date within those areas in the event Physician terminates United States (the "Noncompetition Area") in which the Corporation is doing business as of the Termination Date or in which, at the time of the Termination Date, the Corporation contemplates doing business. The Executive further agrees that during the Noncompetition Period he will not be connected, directly or indirectly, with any person, firm or corporation engaged in a business of the character now or hereafter carried on or contemplated by the Corporation within the Noncompetition Area and that he will not directly or indirectly be employed or become a partner, officer or stockholder of any corporation engaged in such agreement business within said Noncompetition Area; or
(2) engage, directly or indirectly (either as an employee, officer, director, partner, shareholder, consultant or independent contractor), in providing services or products or offering to provide products or services of the kind provided by the Corporation as of the Termination Date for Physician Cause those customers or certain buyout rights the Corporation for whom the Corporation: (i) is engaged in providing services or products as of the Termination Date, or (ii) has either provided services or products within the six (6) month period prior to the Termination Date, or (iii) has personally contacted, as of the Termination Date, for the purpose of offering to provide services or products;
(c) If in any judicial proceeding, a court shall refuse to enforce this Agreement, whether because the time limit is too long or because the restrictions contained herein are exercisedmore extensive (whether as to geographic area, scope of business or otherwise) than is necessary to protect the business and goodwill of the Corporation, it is expressly understood and agreed between the parties hereto that this Agreement is deemed modified to the extent necessary to permit this Agreement to be enforced in any such proceedings.
(d) Practice shall obtain The Executive acknowledges that compliance with this paragraph is necessary to protect the goodwill and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination other proprietary interests of the employment agreement, except Corporation and that a breach of this paragraph will give rise to irreparable and continuing injury to the Corporation which may not be adequately compensable in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practicemonetary damages or at law. Accordingly, if Practice breaches any obligation the Executive agrees that the Corporation, its successors and assigns may obtain injunctive relief against the breach or threaten breach of Section 5.6 hereof or the foregoing provisions of this Section 5.7paragraph, in addition to any other legal remedies which may be available to it under this Management Services Agreement at law Agreement. The Executive further acknowledges that in the event of his termination of employment with the Corporation his knowledge, experience and capabilities are such that the Executive can obtain employment in business activities which are of a different or noncompeting nature than those performed in equitythe course of employment with the Corporation, Business Manager shall be entitled to enforce this Management Services Agreement and that the enforcement of a remedy hereunder by injunctive relief and by specific performance way of injunction will not prevent the Management Services Agreement, such relief to be without the necessity of posting Executive from earning a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceablereasonable livelihood.
Appears in 1 contract
Noncompetition. Practice hereby recognizes and Executive acknowledges that -------------- Business Manager will incur substantial costs in providing (i) Executive performs services of a unique nature for the equipment, support services, personnel, management, administration, and other items and services Company that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Managerirreplaceable, and that Business Manager Executive's performance of such services to a competing business will result in irreparable harm to the Company, (ii) Executive has had and will continue to have access to Confidential Information, which, if disclosed, would not unfairly and inappropriately assist in competition against the Company or any of its subsidiaries, (iii) in the course of Executive's employment by a competitor, Executive would inevitably use or disclose such Confidential Information, (iv) the Company and its subsidiaries have entered into this Management Services Agreement without substantial relationships with their customers and Executive has had and will continue to have access to these customers, (v) Executive has received and will receive specialized training from the following covenants:
Company and its subsidiaries, and (avi) During the Term of this Management Services Agreement Executive has generated and except will continue to generate goodwill for the performance Company and its subsidiaries in the course of Medical Services Executive's employment. Accordingly, during the Employment Term and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writingfor one (1) year thereafter, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and Executive agrees that during the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services AgreementExecutive will not, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity)indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise be associated withotherwise, lend funds toand whether or not for compensation) or render services to any person, lend its name tofirm, corporation or maintain any interest whatsoever other entity, in any enterprise (i) having to do with the provisionwhatever form, distribution, promotion or advertising of any type of management or administrative services or products to third parties engaged in competition with Business Manager; and/or (ii) offering the Company or any type of service its subsidiaries or product in any other material business in which the Practice Territory Company or any of its subsidiaries is engaged on the date of termination or in which they have actively planned, on or prior to third parties similar such date, to those offered by Business Manager be engaged in on or after such date, in any locale of any country in which the Company conducts business or plans to Practiceconduct business. Notwithstanding the above restrictionforegoing, nothing herein shall prohibit Practice Executive from being a passive owner of not more than two percent (2%) of the equity securities of a publicly traded corporation engaged in a business that is in competition with the Company or any of its holders from providing subsidiaries, so long as Executive has no active participation in the business of such corporation. For purposes of this Agreement, "control" means the possession, directly or indirectly, of the power to direct, or cause the direction of, the management and administrative services to its policies of any entity or their own medical practices after the termination person, whether through ownership of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreementvoting securities, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash contract or otherwise. Additionally, nothing in this paragraph and "controlled" and "controlling" shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceablehave correlative meanings.
Appears in 1 contract
Samples: Employment Agreement (Holley Inc.)
Noncompetition. Practice hereby recognizes Employee and acknowledges the Company recognize that -------------- Business Manager Employee's duties will incur substantial costs in providing entail the equipmentreceipt of trade secrets and confidential information, support serviceswhich include not only information concerning the Company's current operations, personnelprocedures, managementsuppliers and other contacts, administrationbut also its short-range and long-range plans, and other items that such trade secrets and services that are confidential information may have been developed by the subject matter Company and its Affiliates at substantial cost and constitute valuable and unique property of this Management Services Agreement and that in the process of providing services under this Management Services AgreementCompany. Accordingly, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and Employee acknowledges that the noncompetition covenants described hereunder are foregoing makes it reasonably necessary for the protection of Business Manager, and the Company's business interests that Business Manager would Employee not have entered into this Management Services Agreement without compete with the following covenants:
(a) During Company or any of its Affiliates during the Term term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement and for a reasonable and limited period of five (5) years from thereafter. Therefore, during the termination date term of this Management Services AgreementAgreement and for two years after Employee's termination of employment, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(bEmployee (a) hereof, Practice shall not directly have any investment in a Competing Business other than a DE MINIMIS investment or indirectly own (excluding b) shall not render personal services to any such Competing Business in any manner, including, without limitation, as owner, partner, director, trustee, officer, employee, consultant or advisor thereof. For purposes of the preceding sentence, a DE MINIMIS investment is ownership of less five percent (5%) than 1/2 of 1% of the outstanding equity or debt of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to PracticeCompeting Business. Notwithstanding anything herein to the above restrictioncontrary, nothing herein if Employee shall prohibit Practice or any of its holders from providing management and administrative services breach the covenants contained in this Article III, the Company shall have no further obligations to its or their own medical practices after the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, Employee pursuant to ------------ this Agreement and may recover from Employee all such damages to which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement it may be entitled at law or in equity. In addition, Business Manager shall Employee acknowledges that any such breach is likely to result in immediate and irreparable harm to the Company for which money damages are likely to be entitled inadequate. Accordingly, Employee consents to enforce injunctive and other appropriate equitable relief that the Company may seek to protect the Company's rights under this Management Services Agreement by injunctive Agreement. Such relief and by specific performance may include, without limitation, an injunction to prevent Employee from disclosing any trade secrets or confidential information concerning the Company to any Entity, to prevent any Entity from receiving from Employee or using any such trade secrets or confidential information and/or to prevent any Entity from retaining or seeking to retain any other employees of the Management Services Agreement, such relief to be without Company. Employee acknowledges good and sufficient consideration for the necessity noncompetition and nonsolicitation covenants of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceableSection.
Appears in 1 contract
Noncompetition. Practice hereby recognizes and acknowledges that -------------- Business Manager will incur substantial costs in providing the equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services at the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and Employee agrees that during the Term term of this Management Services Agreement his or her employment with Employer, and for a period of five twelve (512) years from months (the "Post-Employment Period") following the termination date of this Management Services Agreementsuch employment (except as provided below), except Employee shall not (a) solicit, attempt to divert or divert the business of any customer of Employer; or (b) engage in any activity, directly or indirectly (whether as an employee, owner, consultant, agent or otherwise), involving: (i) the provision of program management and/or network deployment services (including, without limitation, site acquisition, construction, or construction management services) of the type generally offered by Employer, (ii) the provision of radio frequency engineering services of the type generally offered by Employer, (iii) the management, construction or leasing of telecommunications towers, or (iv) the provision of outsourcing services in the telecommunications industry of the type offered by Employer. The foregoing restriction shall be limited as follows: (a) it will apply only to the extent that the prohibited activities are undertaken within the same geographical area that Employer markets or provides competing services, (b) the Employee shall be released from such restriction in the event Practice terminates this Management Services his employment is terminated by the Company other than for "cause," as that term is defined in Section 1.2 of that certain Redemption Agreement for cause pursuant to Section 7.2(b) hereofbetween Koll Telecommunication Services, Practice shall not directly or indirectly own (excluding ownership L.L.C., Castle Rock Telecommunicatxxxx Co., L.L.C., and LCC International, Inc., dated as of less five percent (5%) of the equity of any publicly traded entity)June 29, manage1998, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreement.
(c) The written it will not apply if the Employee voluntarily terminates his employment with Employer; provided, however, that the foregoing restriction shall remain in effect for the Post-Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not Period so long as the Employer continues to compete with Practice within pay Employee's salary and benefits after the Practice Territory for one (1) year after termination of Employee ceases to be employed by the employment agreementEmployer; provided, except however, that in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain Employer should elect to discontinue paying Employee's salary and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, benefits pursuant to ------------ which this clause (c), Employer shall give Employee notice of such discontinuance no later than sixty days prior to the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination effective time of the employment agreement, except in the event Physician terminates such agreement for Physician Causediscontinuance.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 1 contract
Samples: Employee Agreement on Ideas, Inventions and Confidential Information (LCC International Inc)
Noncompetition. Practice hereby recognizes and The Executive acknowledges that -------------- Business Manager will incur substantial costs in providing (i) the equipment, support services, personnel, management, administration, and other items and Executive performs services of a unique nature for the Company that are the subject matter of this Management Services Agreement and that in the process of providing services under this Management Services Agreement, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that the noncompetition covenants described hereunder are necessary for the protection of Business Managerirreplaceable, and that Business Manager the Executive’s performance of such services to a competing business will result in irreparable harm to the Company, (ii) the Executive has had and will continue to have access to Confidential Information, which, if disclosed, would not unfairly and inappropriately assist in competition against the Company or any of its affiliates, (iii) in the course of the Executive’s employment by a competitor, the Executive would inevitably use or disclose such Confidential Information, (iv) the Company and its affiliates have entered into this Management Services Agreement without substantial relationships with their customers and the following covenants:
Executive has had and will continue to have access to these customers, (av) During the Term of this Management Services Agreement Executive has received and except will receive specialized training from the Company and its affiliates, and (vi) the Executive has generated and will continue to generate goodwill for the performance of Medical Services Company and ancillary services at its affiliates in the Office as contemplated by this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere within the Practice Territory. During the Term of this Management Services Agreement and except for the operation course of the Dispensary Business at Offices contemplated byExecutive’s employment. Accordingly, or subject to, this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice shall not establish, operate or engage in a Dispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement Executive’s employment hereunder and for a period of five three (53) years from months thereafter, the termination date of this Management Services AgreementExecutive agrees that the Executive will not, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity)indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise be associated withotherwise, lend funds toand whether or not for compensation) or render services to any person, lend its name tofirm, corporation or maintain any interest whatsoever other entity, in whatever form, engaged in the business of international or domestic maritime transport of petroleum or petroleum-based products, including but not limited to crude oil and refined petroleum products (the “Business”), in each case in any enterprise (i) having to do with the provision, distribution, promotion or advertising locale of any type country (and including, for the avoidance of management doubt, shipping through international waters) in which or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type from which the Company conducts business as of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practiceend of the Employment Term. Notwithstanding the above restrictionforegoing, nothing herein shall prohibit Practice the Executive from being a passive owner of not more than one percent (1%) of the equity securities of a publicly traded corporation engaged in a business that is in competition with the Company or any of its holders from providing management and administrative services to its subsidiaries or their own medical practices after affiliates, so long as the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except Executive has no active participation in the event Physician terminates business of such agreement for Physician Cause or certain buyout rights are exercisedcorporation.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance of the Management Services Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. Additionally, nothing in this paragraph shall limit Business Manager's right to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceable.
Appears in 1 contract
Noncompetition. Practice hereby recognizes The Executive acknowledges and agrees that in consideration and as a condition of the Executive’s promotion by the Company and in exchange for, among other things, the benefits contained in this Agreement, including without limitation the opportunity to receive enhanced post-employment severance benefits, which the Executive acknowledges and agrees is fair and reasonable consideration that -------------- is independent from the continuation of the Executive’s employment, during the Restricted Period the Executive will not directly or indirectly, whether as owner, partner, shareholder, director, manager, consultant, agent, employee, co-venturer or otherwise, engage, participate or invest in any Competing Business Manager will incur substantial costs anywhere in providing the equipmentworld. For purposes hereof, support servicesthe term “Competing Business” shall mean any entity engaged in the discovery, personneldevelopment or commercialization of gene editing technology for human therapeutics. Notwithstanding the foregoing, managementnothing contained hereinabove or hereinbelow shall be deemed to prohibit the Executive from (i) acquiring, administrationsolely as an investment, and shares of capital stock (or other items and services interests) of any corporation (or other entity) not exceeding 2% of such corporation’s (or other entity’s) then outstanding shares of capital stock (or equity interest), or (ii) working for a line of business, division or unit of a larger entity that competes with the Company as long as the Executive’s activities for such line of business, division or unit do not involve work by the Executive on matters that are directly competitive with the subject matter Company’s business. Notwithstanding the foregoing, this Section 7(c) shall not be enforceable during the post-employment portion of the Restricted Period if the Executive is terminated by the Company without Cause, is laid off from employment or if the Company elects to waive the restrictions set forth in this Management Services Agreement and that in Section 7(c). If Section 7(c) is enforced during the process post- employment portion of providing services under this Management Services Agreementthe Restricted Period, Practice will be privy to financial and Confidential Information of Business Manager and other Regional Practices, to which Practice would not otherwise be exposed. The parties also recognize that the services to be provided by Business Manager will be feasible only if Practice operates an active practice to which Physicians associated with Practice devote their full professional time and attention. Practice agrees and acknowledges that Company shall pay the noncompetition covenants described hereunder are necessary for the protection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of Medical Services and ancillary services Executive at the Office as contemplated by this Management Services Agreement or as expressly agreed rate of 50% of the highest annualized base salary paid to by Business Manager in writing, Practice shall not establish, operate or provide Medical Services at a medical office, clinic or other health care facility anywhere the Executive within the Practice Territorytwo year period preceding the last day of Executive’s employment (the “Garden Leave Pay”) during the post-employment portion of the Restricted Period. During the Term Restricted Period Executive will promptly (and immediately upon request) notify the Company of any change in address and each subsequent employer or business activity including the name and address of employer or other post-Company plans and the nature of Executive’s activities. The Company’s election not to provide post-employment Garden Leave Pay shall be deemed a waiver of Executive’s post-employment noncompetition obligations under this Management Services Agreement Section 7(c). In no event will Garden Leave Pay be duplicative of other pay and except for the operation of the Dispensary Business at Offices contemplated by, or subject to, Executive agrees that any Garden Leave Pay received pursuant to this Management Services Agreement or as expressly agreed to by Business Manager in writing, Practice Section 7(c) shall reduce (and shall not establish, operate or engage be in a Dispensary Business at addition to) any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, Practice commits and agrees that during the Term of this Management Services Agreement and for a period of five (5) years from the termination date of this Management Services Agreement, except in the event Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity), manage, operate, control, or otherwise be associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (i) having to do with the provision, distribution, promotion or advertising of any type of management or administrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or product in the Practice Territory to third parties similar to those offered by Business Manager to Practice. Notwithstanding the above restriction, nothing herein shall prohibit Practice or any of its holders from providing management and administrative services to its or their own medical practices after the termination of this Management Services Agreement.
(c) The written Employment Agreements described in Section 5.1 hereof shall contain covenants of Physician-Shareholder whereby they agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause or certain buyout rights are exercised.
(d) Practice shall obtain and enforce formal written agreements with Physician-Employees and Optometrists in the form of Exhibit 5.2A, pursuant to ------------ which the employees agree not to compete with Practice within the Practice Territory for one (1) year after termination of the employment agreement, except in the event Physician terminates such agreement for Physician Cause.
(e) Practice understands and acknowledges pay that the provisions in Section 5.6 hereof and this Section 5.7 are designed to preserve the goodwill of Business Manager and the goodwill of the individual Physicians and Optometrists of Practice. Accordingly, if Practice breaches any obligation of Section 5.6 hereof or this Section 5.7, in addition to any other remedies available under this Management Services Agreement at law or in equity, Business Manager shall Executive may be entitled to enforce this Management Services Agreement by injunctive relief and by specific performance receive during the post-employment portion of the Management Services Agreement, such relief Restricted Period. The Executive acknowledges that he has been advised by the Company that he has the right to be without consult with counsel regarding the necessity of posting a bond, cash or otherwise. Additionally, nothing noncompetition restrictions contained in this paragraph shall limit Business Manager's right Section 7(c) prior to recover any other damages to which it is entitled as a result of Practice's breach. If any provision of the covenants herein is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area or restricted activity that would be held enforceableexecuting this Agreement.
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