Noncompetition. The Executive acknowledges that (i) the Executive performs services of a unique nature for the Company that are 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 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 for a period of twelve (12) months thereafter (the “Restricted Period”), the Executive agrees that the Executive will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 subsidiaries or affiliates, so long as the Executive has no active participation in the business of such corporation.
Appears in 2 contracts
Samples: Employment Agreement (Gener8 Maritime, Inc.), Employment Agreement (General Maritime Corp / MI)
Noncompetition. The Executive acknowledges that (i) Executive agrees that when employed with the Employer during the Employment Period and for any further period in which Executive performs services of is employed with the Employer and for three months after Executive is no longer employed by the Employer for any reason (the “Noncompete Period”), except as set forth in Section 5(a)(ii), Executive will not directly or indirectly, as a unique nature for principal, agent, employee, employer, investor, director, consultant, co-partner or in any other individual or representative capacity whatsoever engage in a Competitive Business anywhere in the Company that Market Area (as such terms are irreplaceabledefined below) by (i) owning, and that the Executive’s performance of such services to managing or controlling a competing business will result in irreparable harm to the CompanyCompetitive Business, or (ii) performing competitive duties that are the same as or substantially similar to those which Executive has had and will continue to have access to Confidential Information, which, if disclosed, would unfairly and inappropriately assist in competition against performed on behalf of the Company Employer or any of its affiliates, (iii) in Affiliates during the course last 24 months of the Executive’s employment by a competitor, the Executive would inevitably use Employer for 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 on behalf of the Executive’s employment. Accordingly, during the Executive’s employment hereunder and for a period of twelve (12) months thereafter (the “Restricted Period”), the Executive agrees that the Executive will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or other entity, in whatever form, Person 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 “a Competitive Business”), in each case in any locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from being a passive owner of may purchase or otherwise acquire up to (but not more than one percent than) 1% of any class of securities of any business enterprise (1%but without otherwise participating in the activities of such enterprise) that engages in a Competitive Business in the Market Area and whose securities are listed on any national securities exchange or have been registered under Section 12 of the equity securities Exchange Act.
(ii) If the Employer terminates Executive for Cause, the covenants of Section 5(a)(i) shall not apply unless the Employer (A) provides written notice to Executive, within 15 days after Executive’s termination date, that such covenants shall apply for a publicly traded corporation engaged period specified in a business the notice, which period shall not exceed 12 months following Executive’s termination date (the period specified, the “Applicable Period”) and (B) agrees to continue to pay the monthly Base Salary on regular payroll dates through the end of the Applicable Period. Payment of the monthly Base Salary will cease, however, in the event the Employer determines that is in competition with the Company or any of its subsidiaries or affiliates, so long as the Executive has no active participation breached the covenants set forth in Section 5 during the business Applicable Period and files an action to enforce the covenants or gives Executive a notice that a claim is being initiated under Section 6 of this Agreement. Further, in such corporationa proceeding, the Employer shall seek, and Executive shall be liable to return to the Employer, any payments made to Executive under this Section 5(a)(ii) dating back to the date of the original breach. For clarity, the covenants of Section 5(a) shall continue to apply during the remainder of the Applicable Period (and the covenants of Section 5(b) and 5(c) shall continue to apply during the remainder of the Noncompete Period).
Appears in 2 contracts
Samples: Employment Agreement (Blue Ridge Bankshares, Inc.), Employment Agreement (Blue Ridge Bankshares, Inc.)
Noncompetition. The Executive acknowledges that (ia) During the Executive performs services term of a unique nature for the Company that are 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 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 this Agreement and for a period of twelve (12) months thereafter one year commencing on the expiration of this Agreement (the “Restricted Noncompetition Period”), Consultant agrees that he will not perform consulting or research services for, or accept employment with, or acquire (or negotiate with respect to the Executive acquisition of) control of any entity located anywhere in the world which engages, proposes to engage, or could be deemed to be engaged in any manner in the Consulting Field. Consultant represents and warrants to Sontra that listed on Appendix A hereto are the only activities of the type specified in the first sentence of this Section 6(a) currently engaged in by Consultant. Sontra agrees that for purposes of this Agreement the activities listed on Appendix A hereto do not fall within the Consulting Field. If, during the Noncompetition Period, Consultant desires to perform consulting or research services for, or accept employment with, or acquire (or negotiate with respect to the acquisition of) control of any entity located anywhere in the world which engages, proposes to engage, or could be deemed to be engaged in any manner in the Consulting Field, and any such activity is not then listed on Appendix A, then Consultant must propose, in writing, an amendment to Appendix A disclosing the proposed activity (the “Proposed Amendment”).
(b) If an activity disclosed in a Proposed Amendment relates to patents, patent applications, inventions, technological innovations, copyrights, copyrightable works, developments, discoveries, designs, processes, formulas, know-how, data or analysis, whether patentable or not (the “Unlicensed Technology”), which, as a result of Consultant’s pre-existing and on-going obligations to M.I.T., are then owned by M.I.T., then Consultant shall cooperate fully with Sontra in Sontra’s efforts to license such Unlicensed Technology. If Sontra obtains a license to such Unlicensed Technology within 120 days following the delivery of the Proposed Amendment, Consultant hereby agrees that the Executive will not, directly or indirectly, own, manage, operate, control, Unlicensed Technology shall be employed by (whether as an employee, consultant, independent contractor or otherwisewithin the meaning of the Consulting Field for all purposes of this Agreement, and whether Consultant shall not be entitled to engage in such activity during the Noncompetition Period for any person or entity other than Sontra. If Sontra does not obtain a license to such Unlicensed Technology within such period (either because Sontra does not attempt to obtain such a license or because Sontra is unable to negotiate successfully to obtain such a license), and the failure to obtain a license is not the result of action taken or failed to be taken by Consultant, then Sontra hereby agrees that the Unlicensed Technology shall not be within the meaning of Consulting Field for compensationall purposes of this Agreement, and agrees to an amendment to Appendix A to such effect.
(c) If the activity disclosed in a Proposed Amendment does not relate to Unlicensed Technology which, as a result of Consultant’s pre-existing and on-going obligations to M.I.T., are then owned by M.I.T., and if Sontra does not agree within 30 days following delivery of the Proposed Amendment that the proposed new activity falls outside the Consulting Field, and therefore does not agree to the Proposed Amendment, then Consultant shall not be entitled to engage in such activity during the Noncompetition Period for any person or entity other than Sontra.
(d) Anything in Sections 6(b) or render services 6(c) to any personthe contrary notwithstanding, firmhowever, corporation or other entityif Consultant disagrees with Sontra’s determination that, as provided 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”Section 6(b), Sontra’s inability to license the Unlicensed Technology is a result of action taken or failed to be taken by Consultant or, as provided in each case Section 6(c), the proposed activity falls inside the Consulting Field then, at Consultant’s election, such dispute shall be settled by binding arbitration in Cambridge, Massachusetts. In the arbitration proceeding, Consultant shall select one arbitrator, Sontra shall select one arbitrator, and the two arbitrators so selected shall select a third arbitrator. The decision of a majority of the arbitrators shall be binding on Consultant and Sontra. Should one party fail to select an arbitrator within five days after notice of the appointment of an arbitrator by the other party, or should the two arbitrators selected by Consultant and Sontra fail to select an arbitrator within ten days after the date of the appointment of the last of such two arbitrators, any person sitting as a Judge of the United States District Court for the Federal District of Massachusetts in which the City of Cambridge is then situated, upon application of Consultant or Sontra, shall appoint an arbitrator to fill such space with the same force and effect as though such arbitrator had been appointed in accordance with the second preceding sentence. Any arbitration proceeding pursuant to this Section 6(a) shall be conducted in accordance with the rules of the American Arbitration Association. Judgment may be entered on the arbitrators’ award in any locale court having jurisdiction.
(e) For a period of six months following the termination of this Agreement, Consultant will not solicit, entice, persuade or induce any country (and includingindividual who is then, for or has been within the avoidance six-month period preceding termination of doubtthis Agreement, shipping through international waters) in which an employee or from which the Company conducts business as consultant of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 Sontra or any of its subsidiaries affiliates to terminate his or affiliatesher employment with Sontra or any of its affiliates or to become employed by or enter into contractual relations with any other individual or entity, so long as and the Executive has no active participation Consultant shall not approach any such employee or consultant for any such purpose or authorize or knowingly approve the taking of any such actions by any other individual or entity. The term “affiliate” shall mean any person or entity that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, Sontra.
(f) Because a breach of the provisions of this Section 6 could not adequately be compensated by money damages, Sontra shall be entitled, in the business event of an actual breach of this Agreement, in addition to any other right and remedy available to it, to an injunction restraining such corporationactual breach. Consultant agrees that the provisions of this Section 6 are necessary and reasonable to protect Sontra in the conduct of its business. If any restriction contained in this Section 6 shall be deemed to be invalid, illegal, or unenforceable by reason of the extent, duration, or geographical scope thereof, or otherwise, then the court making such determination shall have the right to reduce such extent, duration, geographical scope, or other provisions hereof, and in its reduced form such restriction shall then be enforceable in the manner contemplated hereby. Any restrictions on Consultant contained in this Section 6 shall not apply if this Agreement is terminated pursuant to Section 9 as a result of a breach by Sontra of a material term of the Agreement.
Appears in 2 contracts
Samples: Consulting Agreement (Choicetel Communications Inc /Mn/), Consulting Agreement (Choicetel Communications Inc /Mn/)
Noncompetition. The Executive acknowledges that (i) the Executive performs services of a unique nature for Provided the Company that are irreplaceableis not in breach of its obligations to make any of the payments or provide any of the benefits provided in Sections 4 through 10 of this Agreement, and that during the period beginning with the Executive’s performance termination of such services to a competing business will result in irreparable harm to employment during the Company, (ii) Term for any reason and ending on 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 12-month anniversary of the Executive’s termination of 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 hereinafter be referred 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 for a period of twelve (12) months thereafter (as the “Restricted Period”), the Executive agrees that (i) shall not accept a position on the Executive will notboard of any business entity without the approval of the HRCC, which approval shall not be unreasonably withheld and (ii) shall not directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor on the Executive’s own behalf or otherwise, and whether on behalf of any person or not for compensation) or render services to any person, firm, corporation or other entity, in whatever form, engaged in compete with the business of international Company by performing activities or domestic maritime transport of petroleum duties substantially similar to the activities or petroleum-based products, including but not limited to crude oil and refined petroleum products (duties performed by the “Business”), in each case in any locale of any country (and including, Executive for the avoidance Company during the year preceding the Executive’s termination of doubt, shipping through international waters) in which or from which employment for any business entity that is a Direct Competitor of the Company conducts business as within the Restricted Area. A “Direct Competitor” of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from being a passive owner of not more than one percent (1%) of the equity securities of a publicly traded corporation engaged Company is any business or operations in a business that is in direct competition with the Company within the Restricted Area owned or operated by (i) PepsiCo, Inc.; (ii) 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 non-alcoholic beverages within the 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 its subsidiaries non-alcoholic beverages within the Restricted Area at the time the Executive’s employment with the Company terminates; or affiliates(iv) any company that provides bottling operations to the companies listed in subparts (i), so long as (ii), and (iii) within the Restricted Area. The “Restricted Area” is any geographic area within the scope of the Executive’s management authority. The Executive expressly acknowledges and agrees that, because of the nature of the services the Executive has no active participation in provided to the Company, the Executive has provided services throughout the Restricted Area and, therefore, the Restricted Area is reasonably defined to protect the Company’s legitimate business of such corporationinterests.
Appears in 2 contracts
Samples: Employment Agreement (Coca-Cola Enterprises, Inc.), Employment Agreement (Coca-Cola Enterprises, Inc.)
Noncompetition. The Executive acknowledges that (i) the Executive performs services of a unique an important nature for the Company that are irreplaceableCompany, and that the Executive’s performance of such services to a competing business will may result in irreparable harm to the CompanyCompany 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, Information (as defined below) and trade secrets which, if disclosed, would unfairly and inappropriately assist in competition against the Company or any of its affiliatesGroup, (iiiiv) in the course of the Executive’s employment by a competitor, the Executive would inevitably could use or disclose such Confidential InformationInformation and trade secrets, (ivv) the members of Company and its affiliates Group 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 Group in the course of the Executive’s employment. Accordingly, during the Executive’s employment hereunder Employment Term and for a 12 months following the Termination Date, or during such longer period of twelve (12not to exceed 18 months) months thereafter (that Executive is receiving severance benefits under the “Restricted Period”)Severance Plan or Section 11(c) above, the Executive agrees that the Executive will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or 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 a Competing Business in any locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Termor its subsidiaries and controlled affiliates conduct business. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from being a passive owner of not more than four and ninety nine one hundredths percent (14.99%) of the equity securities of a publicly traded corporation engaged in a business that is in competition with the Company or any of its subsidiaries or affiliatesGroup, so long as the 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 Subsidiaries with respect to provision of information technology services to third party customers.1 As used herein, “competitive with the Company or its Subsidiaries” means the provision of the same or similar solutions or services of the Company or its Subsidiaries.
Appears in 2 contracts
Samples: Employment Agreement (Thoughtworks Holding, Inc.), Employment Agreement (Turing Holding Corp.)
Noncompetition. The Executive Employee acknowledges that (i) the Executive Employee performs services of a unique nature for the Company that are irreplaceable, and that the ExecutiveEmployee’s performance of such services to a competing business will result in irreparable harm to the Company, (ii) the Executive Employee has had and will continue to have access to Confidential Information, 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 ExecutiveEmployee’s employment by a competitor, the Executive Employee would inevitably use or disclose such Confidential Information, (iv) the Company and its affiliates have substantial relationships with their customers and the Executive Employee has had and will continue to have access to these customers, (v) the Executive Employee has received and will receive specialized training from the Company and its affiliates, and (vi) the Executive Employee has generated and will continue to generate goodwill for the Company and its affiliates in the course of the ExecutiveEmployee’s employment. Accordingly, during the ExecutiveEmployee’s employment hereunder and for a period of twelve one (121) months thereafter (the “Restricted Period”)year thereafter, the Executive Employee agrees that the Executive Employee will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or other entity, in whatever form, engaged in competition with the Company or any of its subsidiaries or affiliates or in any other material business in which the Company or any of international its subsidiaries or domestic maritime transport affiliates is engaged on the date of petroleum termination or petroleum-based productsin which they have planned, including but not limited on or prior to crude oil and refined petroleum products (the “Business”)such date, to be engaged in each case on or after such date, in any locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Termbusiness. Notwithstanding the foregoing, nothing herein shall prohibit the Executive 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 subsidiaries or affiliates, so long as the Executive Employee has no active participation in the business of such corporation. In addition, the provisions of this Section 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.
Appears in 2 contracts
Samples: Employment Agreement (Phibro Animal Health Corp), Employment Agreement (Phibro Animal Health Corp)
Noncompetition. The Executive Employee acknowledges that (i) the Executive Employee performs services of a unique nature for the Company Group that are irreplaceable, and that the ExecutiveEmployee’s performance of such services to a competing business will result in irreparable harm to the CompanyCompany Group, (ii) the Executive Employee has had and will continue to have access to Confidential Information, Information which, if disclosed, would unfairly and inappropriately assist in competition against the Company or any of its affiliatesGroup, (iii) in the course of the ExecutiveEmployee’s employment by a competitor, the Executive Employee would inevitably use or disclose such Confidential Information, (iv) the Company and its affiliates have Group has substantial relationships with their respective customers and the Executive Employee has had and will continue to have access to these customers, (v) the Executive Employee has received and will receive specialized training from the Company and its affiliatesGroup, and (vi) the Executive Employee has generated and will continue to generate goodwill for the Company and its affiliates Group in the course of the ExecutiveEmployee’s employment. Accordingly, during the ExecutiveEmployee’s employment hereunder with any Company Group Member and for a period of twelve one (121) months year thereafter (the “Restricted Period”), the Executive Employee agrees that the Executive Employee will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or other entity, in whatever form, engaged in competition with any Company Group Member or in any other material business in which any Company Group Member is engaged on the business date of international termination or domestic maritime transport of petroleum in which they have planned, on or petroleum-based productsprior to such date, including but not limited to crude oil and refined petroleum products (the “Business”)be engaged in on or after such date, in each case in any locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the any Company Group Member conducts business as of the end of the Employment Termbusiness. Notwithstanding the foregoing, nothing herein shall prohibit the Executive Employee from being a passive owner of not more than one two percent (12%) of the equity securities of a publicly traded corporation engaged in a business that is in competition with the Company or any of its subsidiaries or affiliatesGroup, so long as the Executive Employee has no active participation in the business of such corporation.
Appears in 2 contracts
Samples: Performance Restricted Stock Unit Agreement (Atento S.A.), Time Restricted Stock Unit Agreement (Atento S.A.)
Noncompetition. The Executive expressly acknowledges that (i) the Executive performs services of a unique nature for the Company that are irreplaceableand its Subsidiaries market and sell products globally, and that given the Executive’s performance substantial experience and expertise in the industry including his significant exposure, access to, and participation in the development of such services to the Company’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 that may serve as a competing business will result in substitute for, the Company’s or any of its Subsidiaries’ products, would cause substantial and irreparable harm to the Company’s, (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 and/or 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 employmentSubsidiaries’ business. Accordingly, during the Executive’s employment hereunder and for a period of twelve (12) months thereafter (the “Restricted Period”), the Executive agrees that the Executive will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 during his employment with the Company or any of its subsidiaries Subsidiaries, and for a period after the termination of his employment with the Company and its Subsidiaries equal to (i) thirty-six (36) months if the Executive’s employment by the Company or affiliatesa 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, so long as the Executive has no active participation shall not, directly or indirectly, other than on behalf of the Company or its Subsidiaries, participate or become involved as an owner, partner, member, director, officer, employee, or consultant, or otherwise enter into any business relationship, with any individual or entity anywhere in the business world that develops, produces, manufactures, sells, or distributes starch, corn, rice, potato, stevia, strawberry and other agricultural raw materials, oils, sweeteners, starches, concentrates, essences or other products produced by the Company or any of its Subsidiaries or that could be used as a substitute for such corporationproducts 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 following entities that manufacture such or similar products: ADM, Cargill, Bunge, Roquette, and Xxxx & Xxxx.
Appears in 2 contracts
Samples: Executive Severance Agreement, Executive Severance Agreement (Ingredion Inc)
Noncompetition. The It is recognized by Executive and Employer that Executive's duties under this Agreement will entail the receipt of trade secrets and confidential information, which include not only information concerning Employer's current operations, procedures, suppliers and other contacts, but also its short-range and long-range plans, and that such trade secrets and confidential information may have been developed by Employer and its Affiliates at substantial cost and constitute valuable and unique property of Employer. Accordingly, Executive acknowledges that (i) the Executive performs services of a unique nature foregoing makes it reasonably necessary for the Company protection of Employer's business interests that are 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 not compete with Employer or any of its affiliatesAffiliates during the term of this Agreement and for a reasonable and limited period thereafter. Therefore, (iii) in during the course term of this Agreement and for one year after termination of the Executive’s employment by Agreement, Executive shall not have any investment in a competitorCompeting Business other than a de minimis investment and shall not render personal services to any such Competing Business in any manner, the 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 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 other than for the Company and its affiliates in the course Cause. For purposes of the Executive’s employmentpreceding sentence, a de minimis investment is ownership of less than 1% of the outstanding stock or debt of any Competing Business. Notwithstanding Section 2.7 above, if Executive shall breach the covenants contained in this Section 3.3 or in Section 3.2, Employer shall have no further obligations to Executive pursuant to this Agreement and may recover from Executive all such damages as it may be entitled to at law or in equity. In addition, Executive acknowledges that any such breach is likely to result in immediate and irreparable harm to Employer for which money damages are likely to be inadequate. Accordingly, during the Executive’s employment hereunder Executive consents to injunctive and for a period of twelve (12) months thereafter (the “Restricted Period”)other appropriate equitable relief that Employer may seek to protect Employer's rights under this Agreement. Such relief may include, the without limitation, an injunction to prevent Executive agrees that the Executive will not, directly from disclosing any trade secrets or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services confidential information concerning Employer to any personEntity, firm, corporation to 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 entity, in whatever form, engaged in the business employees 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 subsidiaries or affiliates, so long as the Executive has no active participation in the business of such corporationEmployer.
Appears in 2 contracts
Samples: Employment Agreement (Elder Beerman Stores Corp), Employment Agreement (Elder Beerman Stores Corp)
Noncompetition. The Executive Employee acknowledges that (i) the Executive Employee performs services of a unique nature for the Company Group that are irreplaceable, and that the ExecutiveEmployee’s performance of such services to a competing business will result in irreparable harm to the CompanyCompany Group, (ii) the Executive Employee has had and will continue to have access to Confidential Information, Information which, if disclosed, would unfairly and inappropriately assist in competition against the Company Group or any of its affiliates, (iii) in the course of the ExecutiveEmployee’s employment by a competitor, the Executive Employee would inevitably use or disclose such Confidential Information, (iv) the Company Group and its affiliates have substantial relationships with their customers and the Executive Employee has had and will continue to have access to these customers, (v) the Executive Employee has received and will receive specialized training from the Company Group and its affiliates, and (vi) the Executive Employee has generated and will continue to generate goodwill for the Company Group and its affiliates in the course of the ExecutiveEmployee’s employment. Accordingly, during the ExecutiveEmployee’s employment hereunder and for a period of twelve (12) months thereafter (the “Restricted Period”)thereafter, the Executive Employee agrees that the Executive Employee will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or other entity, in whatever form, engaged in (i) the fast casual restaurant business in North America that derives at least twenty percent (20%) of international its revenue from the sale of Mediterranean inspired items 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) other material business in which or from which the Company conducts business as Group or any of its affiliates is engaged on the date of the end Employee’s termination of the Employment Termemployment or in which they have planned, on or prior to such date, to be engaged in on or after such date. Notwithstanding the foregoing, nothing herein shall prohibit the Executive 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 subsidiaries or affiliates, so long as the Executive Employee has no active participation in the business of such corporation.
Appears in 2 contracts
Samples: Employment Agreement (Zoe's Kitchen, Inc.), Employment Agreement (Zoe's Kitchen, Inc.)
Noncompetition. The Executive acknowledges that (i) the Executive performs services of a unique nature for the Company that are 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 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 for a period of twelve six (126) months thereafter (the “Restricted Period”), the Executive agrees that the Executive will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 subsidiaries or affiliates, so long as the Executive has no active participation in the business of such corporation.
Appears in 2 contracts
Samples: Employment Agreement (Gener8 Maritime, Inc.), Employment Agreement (General Maritime Corp / MI)
Noncompetition. The Executive acknowledges Promisor agrees that (i) the Executive performs services of a unique nature for the Company that are 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 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 for a period of twelve three (123) months thereafter years from the date hereof, Promisor shall not:
(i) Call upon, solicit, divert, take away or attempt to call upon, solicit, divert or take away any past, existing or potential customers, suppliers, businesses, or accounts of (a) the “Restricted Period”)Company or (b) the Business in connection with any business substantially similar to the Business in the Territory;
(ii) Hire, attempt to hire, contact or solicit with respect to hiring for Promisor or on behalf of any other person any present or future employee of the Executive agrees that Company or Buyer in the Executive will notBusiness;
(iii) Engage in, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services give any advice to any person, firm, partnership, association, venture, corporation or other entityentity engaged in, in whatever form, engaged a business substantially similar to the Business in the Territory;
(iv) Lend credit, money or reputation for the purpose of establishing or operating a business substantially similar to the Business 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 international the foregoing provisions, conduct a business substantially similar to the Business, whether or domestic maritime transport of petroleum not under the name "GigaPixel" or petroleum-based productsany other trade names, including but not limited trademarks or service marks used by the Company or Buyer in the Territory. The covenants in subsections (i) through (vi) are intended to crude oil and refined petroleum products (the “Business”), in each case restrict Promisor from competing in any locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 manner with the Company or any of its subsidiaries or affiliates, so long as the Executive has no active participation Business in the business 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 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 being the holder of up to 5.0% in the aggregate of any class of securities of any corporation engaged in, directly or indirectly, the activities described in subsections (i) through (vi) above, provided that such corporationsecurities are listed on a national securities exchange or reported on Nasdaq.
Appears in 2 contracts
Samples: Noncompetition Agreement (3dfx Interactive Inc), Noncompetition Agreement (3dfx Interactive Inc)
Noncompetition. The Executive Practice hereby recognizes and acknowledges that (i) -------------- Business Manager will incur substantial costs in providing the Executive performs equipment, support services, personnel, management, administration, and other items and services that are the subject matter of a unique nature 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 Company that are irreplaceableprotection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the Executive’s following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of such services 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 competing business will result medical office, clinic or other health care facility anywhere within the Practice Territory.
(b) Except as specifically agreed to by Business Manager in irreparable harm to the Companywriting, (ii) the Executive has had Practice commits 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, agrees that during the Executive’s employment hereunder Term of this Management Services Agreement and for a period of twelve one (121) months thereafter (year from the “Restricted Period”)termination date of this Management Services Agreement, except in the Executive agrees that the Executive will notevent Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly, ownindirectly 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 employed by associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (whether as an employeei) having to do with the provision, consultantdistribution, independent contractor promotion or otherwise, and whether advertising of any type of management or not for compensationadministrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or render services to any person, firm, corporation or other entity, in whatever form, engaged product in the business of international or domestic maritime transport of petroleum or petroleum-based products, including but not limited Practice Territory to crude oil and refined petroleum products (the “Business”), in each case in any locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Termthird parties similar to those offered by Business Manager to Practice. Notwithstanding the foregoingabove restriction, nothing herein shall prohibit 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 Practice or any of its subsidiaries holders from providing management and administrative services to its or affiliatestheir 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, so long as the Executive has no active participation except in the business 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.
(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 corporationEvent of Default.
Appears in 2 contracts
Samples: Management Services Agreement (Novamed Eyecare Inc), Management Services Agreement (Novamed Eyecare Inc)
Noncompetition. The Executive acknowledges that (i) The Seller covenants and agrees that, except for the Executive performs services fulfillment of its obligations pursuant to Section 2(d)(ii) and except as expressly set forth herein, for a period of five (5) years from the Closing Date, neither it nor its Affiliates will, (A) (1) anywhere in the world, directly or indirectly engage in or own, operate, advise or manage any Person engaged in, Online Services, or (2) directly or indirectly engage in or own, operate, advise or manage any Person engaged in, Third Party Valve Maintenance with respect to Valves used or to be used at any customer site that is located within one-hundred (100) miles of any of the Locations listed on Schedule 5(l)(i) ((A)(1) and (A)(2) together being the “Restricted Business”) or (B) establish any new local general Valve service and repair center within one-hundred (100) miles of a unique nature Facility, although Seller may establish and operate a Valve Maintenance facility within one-hundred (100) miles of a Facility to perform OEM Valve Maintenance and/or OEM Related Third-Party Valve Maintenance to the level permitted in the definition of OEM Related Third-Party Valve Maintenance. Notwithstanding the foregoing, the parties agree that the Restricted Business shall not include either (w) OEM Related Third-Party Valve Maintenance, or (x) maintenance, repair, replacement, upgrading and servicing, in a non-pressurized environment, of (1) products that are presently or in the future manufactured by Seller or its Affiliates (including manufacture under licensing arrangements by third-parties to Seller or its Affiliates) or (2) products that perform substantially the same functions as the products described in (x)(1) or (3) any related accessories or customer equipment, including Valves, that are related in a substantial way to the products described in (x)(1) and (x)(2) and the maintenance, repair, replacement, upgrading or servicing of which are necessary to restore or improve functional service to such products. For the sake of clarification, and not as a limitation, the parties acknowledge that for the Company that are irreplaceablepurposes of this Section 5(l), (y) during the five-year noncompetition period, the Seller and its Affiliates shall not perform on-site services at customers’ sites on pressurized operating equipment, and that the Executive’s performance of such services to a competing business will result in irreparable harm to the Company, (iiz) the Executive has had term Affiliate shall include future Affiliates (including Acquired Persons). For the avoidance of doubt, nothing in the definition of Restricted Business shall restrict in any way Seller’s manufacture, marketing, sale, service, repair and will continue to have access to Confidential Information, which, if disclosed, would unfairly distribution of current and inappropriately assist in competition against the Company future products manufactured by Seller or any of its affiliatesAffiliates (including manufacture under licensing arrangements by third-parties to Seller or its Affiliates) except to the extent expressly set forth herein.
(ii) The restrictions set forth in Section 5(l)(i) above shall not apply (A) if Seller is acquired by a Person (an “Acquiring Person”) through a merger or consolidation or sale of all or substantially all of its assets and the Acquiring Person was materially engaged in the Restricted Business prior to the acquisition, or (B) to the acquisition by the Seller or any of its Affiliates of a Person (an “Acquired Person”) by merger or consolidation or purchase of all or substantially all of the assets of the Acquired Person (an “Acquisition”), so long as (1) the Acquired Person was engaged in the Restricted Business prior to such acquisition, and (2) within two-hundred seventy (270) days following the consummation of such Acquisition, Seller, or its applicable Affiliate, sells the portion of the business of the Acquired Person that constitutes the Restricted Business (the “Restricted Portion”) or ceases all Restricted Business it is conducting as a result of such Acquisition within two-hundred seventy (270) days following the consummation of such Acquisition (or, if buyer shall have delivered the Buyer Notice described in (iii) below, within the later of (y) two-hundred seventy (270) days following the consummation of such Acquisition or (z) sixty (60) days after Buyer and Seller have terminated negotiations regarding the purchase of the Restricted Portion by Buyer.)
(iii) In the event that Seller, or its applicable Affiliate, sells or proposes to sell such Restricted Portion to any person other than Buyer or its Affiliates (a “Third-Party Buyer”), then Seller shall provide Buyer with written notice (the “Seller Notice”) of such sale at least ninety (90) days prior to the closing of such sale or proposed sale, which Seller Notice shall describe in reasonable detail the proposed sale, including the nature of the transfer, the proposed price of such sale and any other material terms thereof. Following receipt by Buyer of such Seller Notice, Buyer shall have the option to purchase the Restricted Portion upon the same terms and conditions specified in the course Seller Notice which option it may exercise by delivering Seller written notice thereof (the “Buyer Notice”) within forty-five (45) days after its receipt of Seller Notice. If Buyer provides Seller with the Buyer Notice in the required time period, then Seller and Buyer shall take all commercially reasonable actions as are necessary to consummate the sale of the Executive’s employment Restricted Portion to Buyer on terms consistent with the Seller Notice. In the event Buyer fails to provide the Buyer Notice to Seller in the required time period, then Seller or its applicable Affiliate may consummate the proposed sale of the Restricted Portion with the Third Party Buyer, but only on terms and conditions that are not materially different from the terms and conditions set forth in the Seller Notice. If Buyer fails to exercise its option following receipt of the Seller Notice, Seller or its applicable Affiliate may not consummate a sale of the Restricted Portion to any Person on terms that are materially different from the terms in the Seller Notice without again complying with terms of this Section and providing a new Seller Notice to Buyer regarding such revised terms. Notwithstanding the foregoing, any failure of Buyer to exercise its option to purchase the Restricted Portion shall not relieve Seller of its obligation to sell the Restricted Portion or cease all Restricted Business it is conducting as a result of such Acquisition within two-hundred seventy (270) days following the consummation of such Acquisition (or, if Buyer shall have delivered the Buyer Notice, within the later of (y) two-hundred seventy (270) days following the consummation of such Acquisition or (z) sixty (60) days after Buyer and Seller have terminated negotiations regarding the purchase of the Restricted Portion by a competitor, the Executive would inevitably use or disclose such Confidential Information, Buyer).
(iv) the Company and its affiliates have substantial relationships with their customers and the Executive has had and The Seller will continue to have access to these customersnot, (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 for a period of twelve five (125) months thereafter (years following the “Restricted Period”)Closing Date without the prior written consent of the Buyer, the Executive agrees that the Executive will noteither alone or in conjunction with any other Person, directly or indirectly, ownor through its present or future Affiliates, manage, operate, control, be employed solicit (other than a solicitation by (whether as general advertisement) any person who is an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as employee of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 Buyer or any of its subsidiaries or affiliates, so long as the Executive has no active participation Affiliates who is engaged primarily in the business Business, to terminate his or her employment with the Buyer or such Affiliate.
(v) The Seller acknowledges that the covenants of the Seller set forth in this Section 5(l), are an essential element of this Agreement and that any breach by the Seller of any provision of this Section 5(l),will result in irreparable injury to the Buyer. The Seller acknowledges that in the event of such corporationa breach, in addition to all other remedies available at law, the Buyer shall be entitled to equitable relief, including injunctive relief, and an equitable accounting of all earnings, profits or other benefits arising therefrom, as well as such other damages as may be appropriate. The Seller has independently consulted with its counsel and after such consultation agrees that the covenants set forth in this Section 5(l) are reasonable and proper to protect the legitimate interest of the Buyer.
(vi) If a court of competent jurisdiction determines that the character, duration or geographical scope of the provisions of this Section 5(l) are unreasonable, it is the intention and the agreement of the parties that these provisions shall be construed by the court in such a manner as to impose only those restrictions on the Seller’s conduct that are reasonable in light of the circumstances and as are necessary to assure to the Buyer the benefits of this Agreement. If, in any judicial proceeding, a court shall refuse to enforce all of the separate covenants of this Section 5(l), because taken together they are more extensive than necessary to assure to the Buyer the intended benefits of this Agreement, it is expressly understood and agreed by the parties that the provisions hereof that, if eliminated, would permit the remaining separate provisions to be enforced in such proceeding, shall be deemed eliminated from this Agreement.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Xanser Corp), Asset Purchase Agreement (Flowserve Corp)
Noncompetition. The Executive acknowledges Employee recognizes and agrees that (i) the Executive performs services of a unique nature for the Company that are irreplaceable, and will suffer irreparable harm in the event that the Executive’s performance of such services to a competing business will result in irreparable harm to Employee enters into competition with the Company, (ii) either during or following the Executive has had and will continue to have access to Confidential InformationEmployee’s employment with the Company. Therefore, which, if disclosed, would unfairly and inappropriately assist in competition against the Employee agrees that while the Employee is employed by 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 for a period of twelve (12) months thereafter one year following the termination or cessation of such employment (the “Restricted Period”), regardless of the Executive agrees that reasons, the Executive will Employee shall not, directly or indirectly, ownalone or as a consultant, managepartner, operateofficer, controldirector, be 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 subsection (a) will prevent the Employee from being employed by a subsidiary, division, affiliate or unit (whether as each, a “Unit”) of an employee, consultant, independent contractor or otherwise, and whether or entity if that Unit is not for compensation) or render services to any person, firm, corporation or other entity, in whatever form, engaged in any business which is in competition with the products 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) engage in or undertake any business operations of conceiving, 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 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts future business as plans of the end of the Employment Term. Notwithstanding the foregoingCompany, nothing herein shall prohibit the Executive from being a passive owner of not more than except that he may own up to one percent (1%) of the outstanding securities of any corporation having a class of equity securities of actively traded on a publicly traded corporation engaged in a national securities exchange or on the NASDAQ Stock Market. A business that is or entity shall be deemed to be in competition with the products or services being conceived, designed, created, developed, manufactured, marketed, distributed, sold or rendered by the Company or any of its subsidiaries or affiliates, so long as the Executive has no active participation if it is in the 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 anywhere the Company is doing business, has done business or intends to do business. The Employee acknowledges and agrees that if he violates any of the provisions of this Section 2, the Restricted Period will be extended from the date of termination of employment for a period equal to any period during which he engages in such corporationviolation(s), whether such period is during the pendency of litigation or otherwise.
Appears in 2 contracts
Samples: Employment Agreement (Dicerna Pharmaceuticals Inc), Employment Agreement (Dicerna Pharmaceuticals Inc)
Noncompetition. The Executive acknowledges that (i) the Executive performs services of a unique nature for the Company that are 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, 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 for a period of twelve (12) months thereafter (the “Restricted Period”)two years thereafter, the Executive agrees that the Executive will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or other entity, in whatever form, engaged in competition with the Company or any of its subsidiaries or affiliates or in any other material business in which the Company or any of international its subsidiaries or domestic maritime transport affiliates is engaged on the date of petroleum termination or petroleum-based productsin which they have planned, including but not limited on or prior to crude oil and refined petroleum products (the “Business”)such date, to be engaged in each case on or after such date, in any locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as other than with the written consent of the end Company granted by either the then President and Chief Executive Officer of the Employment TermCompany or the Board of Directors of the Company. Notwithstanding the foregoing, nothing herein shall prohibit 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 subsidiaries or affiliates, so long as the Executive has no active participation in the business of such corporation.
Appears in 2 contracts
Samples: Employment Agreement (Commercial Vehicle Group, Inc.), Employment Agreement (Commercial Vehicle Group, Inc.)
Noncompetition. The In further consideration of the compensation to be paid to the Executive hereunder (including during the Severance Period), the Executive acknowledges that (i) 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 performs services agrees that, from the date hereof until twelve (12) months after the termination of a unique nature for the Company that are 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 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 or otherwise compete with the businesses of the Company or its subsidiaries or affiliates, (iii) in either as a general or limited partner, proprietor, common or preferred shareholder, director, agent, trustee, affiliate or otherwise, or perform, on behalf of any Competing Business, any services that are substantially similar to the course of the Executive’s employment by a competitor, services that the Executive would inevitably use or disclose such Confidential Information, (iv) provided to the Company and or its subsidiaries or 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 with the Company or its subsidiaries or affiliates. The Executive acknowledges that the Company’s and for a period of twelve (12) months thereafter (the “Restricted Period”), the Executive its subsidiaries’ and affiliates’ businesses are conducted nationally and agrees that the Executive will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or other entity, provisions in whatever form, engaged in this Section 3 shall operate throughout 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment TermUnited States. Notwithstanding the foregoing, nothing Nothing herein shall prohibit the Executive from being a passive owner of not more than one two percent (12%) of the equity outstanding securities of a any publicly traded corporation engaged in company that constitutes a business that is in competition with the Company or any of its subsidiaries or affiliatesCompeting Business, so long as the Executive has no active participation in the business of such corporationcompany. 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, that is either (i) conducted by the Company during the period of the Executive’s employment with the Company and 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 the Executive’s employment with the Company.
Appears in 2 contracts
Samples: Executive Employment Agreement (STG Group, Inc.), Executive Employment Agreement (STG Group, Inc.)
Noncompetition. The Executive Employee acknowledges that (i) the Executive Employee performs services of a unique nature for the Company that are irreplaceable, and that the ExecutiveEmployee’s performance of such services in violation of this provision to a competing business will result in irreparable harm to the Company, (ii) the Executive Employee has had and will continue to have access to Confidential Information, 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 Employee has had and will continue to have access to these customers, and (viv) the Executive has received and will receive specialized training from the Company and its affiliates, and (vi) the Executive Employee has generated and will continue to generate goodwill for the Company and its affiliates in the course of the ExecutiveEmployee’s employment. employment Accordingly, during the ExecutiveEmployee’s employment hereunder and for a period of twelve six (126) months thereafter (the “Restricted Noncompete Period”), the Executive Employee agrees that the Executive Employee will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or other entity, in whatever form, engaged in competition with the Company or any of its subsidiaries or affiliates or in any other material business in which the Company or any of international its subsidiaries or domestic maritime transport affiliates is engaged on the date of petroleum termination or petroleum-based productsin which they have planned, including but not limited on or prior to crude oil and refined petroleum products (the “Business”)such date, to be engaged in each case on or after such date, in any locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of or otherwise engage in conduct that interferes or conflicts with the end of Employee’s duties to the Employment TermCompany or creates a potential business or fiduciary conflict. Notwithstanding the foregoing, nothing herein shall prohibit the Executive Employee from being a passive owner of not more than one three percent (13%) 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 subsidiaries or affiliatesaffiliates or through a private equity, venture capital or other commingled fund, so long as the Executive Employee has no active participation in the business of such corporation. In addition, the provisions of this Section 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.
Appears in 2 contracts
Samples: Employment Agreement (Thryv Holdings, Inc.), Employment Agreement (Thryv Holdings, Inc.)
Noncompetition. The Executive acknowledges that (i) the Executive performs services of a unique nature for the Company that are 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 affiliates, (iii) in the course of his or her employment with the Company he or she may 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 may 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 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 for a period of twelve (12) months thereafter (the “Restricted Period”), the Executive agrees that the Executive will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 subsidiaries or affiliatesaffiliates (collectively the “Noncompete Period”), so long as 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 its subsidiaries’ and affiliates’ businesses are conducted nationally and agrees that the provisions in this Section 3 shall operate throughout the United States. 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, that is either (i) conducted by the Company during the period of the Executive’s employment with the Company and 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 the Executive’s employment with the Company. Notwithstanding the foregoing provisions in this Section 3, the Company retains the right to not enforce these provisions in which the Executive seeks to work for a Competing Business on a contract and/or potential business opportunity that the Company has no active participation 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 contractual restrictions that might limit the enforcement of the provisions in the business of such corporationthis Section 3.
Appears in 2 contracts
Samples: Executive Employment Agreement (STG Group, Inc.), Executive Employment Agreement (STG Group, Inc.)
Noncompetition. (i) The Executive acknowledges that (i) the Executive performs services of a unique nature for the Company that are irreplaceable, 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 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, Group; and (vi) the Executive has generated and will continue to generate goodwill for the Company and its affiliates Group in the course of the Executive’s employment. Accordingly, during the Executive’s employment hereunder or other engagement with the Company Group and for a period of twelve (12) months one year thereafter (the “Restricted Period”), the Executive agrees that the Executive will not, directly or indirectly, ownfor the Executive’s own account or for the account of any other person, managewith or on behalf of any person, operateor as a sole proprietor, controlpartner, be employed by (whether as an stockholder, director, officer, principal, agent, employee, consultant, independent contractor representative, advisor or otherwiseexecutive, and whether or not for compensationin any other capacity or relationship, (A) engage in any Competitive Activities within or render services with respect to any personcountry, firmstate, corporation city, county, parish or other entity, locale 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as operates or has taken substantial preparatory steps to enter, (B) participate in or make any investment or acquisition in any investment, assets or other interests that the Executive actually knew had been consummated or was being pursued or contemplated by the Company Group, and/or (C) take any preparatory steps to engage in any of the end activities described in clauses (A) or (B) of the Employment Termthis Section 9(b). Notwithstanding the foregoing, (1) nothing herein shall prohibit prohibits 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 subsidiaries or affiliates, so long as the Executive has no active participation in the business of such corporationcorporation and (2) in the event the Executive’s termination of employment is in connection with the wind down of the Company and no General Severance is paid pursuant to Section 7(d)(i)(2), this Section 9(b) shall not apply following such termination of employment.
(ii) As used in this Agreement, the following terms shall have the following meanings:
Appears in 2 contracts
Samples: Employment Agreement (Verde Clean Fuels, Inc.), Employment Agreement (Verde Clean Fuels, Inc.)
Noncompetition. The Director hereby agrees that, for three (3) years following the Effective Time or for three (3) years following Director’s affiliation with Buyer or SNB as a director, employee, or consultant (whichever period is longer), Director shall not Compete (as defined herein) against Buyer, SNB, or any of their Affiliated Companies in the Restricted Area without the prior written consent of Buyer’s Chief Executive acknowledges that Officer, which consent shall not be unreasonably withheld; provided, however, Buyer’s Chief Executive Officer shall be deemed to have provided prior written consent to the activities of Director described in Schedule I attached hereto and such activities shall not (as the date hereof or during the term of this Agreement) be deemed to be a breach of this Agreement. For purposes of this Agreement, “Compete” means to engage or participate in Business Activities (or to prepare to engage or participate in Business Activities) on Director’s own behalf, or with, for or on behalf of (i) the Executive performs services of a unique nature for the Company that are 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 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 for a period of twelve (12) months thereafter (the “Restricted Period”), the Executive agrees that the Executive will not, directly or indirectly, own, manage, operate, control, be employed by (whether other financial institution as an employeeofficer, director, manager, owner, partner, joint venture, consultant, independent contractor contractor, employee, or otherwiseshareholder of, or (ii) any other Person, business, or enterprise. For purposes of this Agreement, “Business Activities” shall be any business activities conducted by Buyer, Seller, SNB, or any of their Affiliated Companies, which includes commercial or consumer loans and extensions of credit, letters of credit, commercial and consumer deposits and deposit accounts, securities repurchase agreements and sweep accounts, cash management services, money transfer and bxxx payment services, internet or electronic banking, automated teller machines, IXX and retirement accounts, commercial or consumer mortgage loans, and whether commercial or not for compensationconsumer home equity lines of credit. For purposes of this Agreement, the “Restricted Area” means each and any county where the Buyer, SNB, Bank, or any of their Affiliated Companies (i) operates a banking office, or render services to any person(ii) has operated a banking office within the preceding 12 months, firm, corporation or other entity, in whatever form, (iii) is actively engaged in the business of international providing Business Activities to customers. Nothing in this Section 2(d) shall prohibit Director from acquiring 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 locale of any country (and includingholding, for the avoidance of doubtinvestment purposes only, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from being a passive owner of not more less than one five percent (15%) of the equity outstanding securities of a publicly traded corporation engaged in a any company or business that is in competition organization which may compete directly or indirectly with the Company Seller, Buyer, SNB, or any of its subsidiaries their Affiliated Companies. Nothing in this Agreement shall prohibit a Director or affiliates, so long as the Executive has no active participation in the business any of such corporationDirector’s Affiliated Companies from continuing to hold outstanding securities of an entity that engages in Business Activities; provided that such securities were held by the Director or any of such Director’s Affiliated Company as of the date of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Seacoast Banking Corp of Florida), Merger Agreement (Seacoast Banking Corp of Florida)
Noncompetition. The Executive acknowledges that (i) the Executive performs services of a unique nature for the Company that are 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 affiliatessubsidiaries, (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 subsidiaries 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 affiliatessubsidiaries, and (vi) the Executive has generated and will continue to generate goodwill for the Company and its affiliates subsidiaries in the course of the Executive’s employment. Accordingly, during the Executive’s employment hereunder Employment Term and for a period of twelve one (121) months thereafter (the “Restricted Period”)year thereafter, the Executive agrees that the Executive will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or other entity, in whatever form, engaged in competition with the Company or any of its subsidiaries or in any other material business in which the Company or any of international its subsidiaries is engaged on the date of termination or domestic maritime transport of petroleum in which they have actively planned, on or petroleum-based productsprior to such date, including but not limited to crude oil and refined petroleum products (the “Business”)be engaged in on or after such date, in each case in any locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Termor plans to conduct business. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from being a passive owner of not more than one two percent (12%) of the equity securities of a publicly traded corporation engaged in a business that is in competition with the Company or any of its subsidiaries or affiliatessubsidiaries, so long as the 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 policies of any entity or person, whether through ownership of voting securities, contract or otherwise, and “controlled” and “controlling” shall have correlative meanings.
Appears in 2 contracts
Samples: Employment Agreement (Holley Inc.), Employment Agreement (Holley Inc.)
Noncompetition. 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 (i) the Executive performs services of a unique nature for the Company that are 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 affiliates, (iii) in the course of the Executive’s employment by a competitor, the Executive would inevitably use or disclose such Confidential Information, (iv) with the Company and its affiliates have substantial relationships with Affiliates and their customers and predecessors, the Executive has had will become familiar with the trade secrets of, and will continue to have access to these customersother confidential information concerning, (v) the Executive has received and will receive specialized training from the Company and its affiliatesAffiliates and their predecessors, that the Executive’s services will be of special, unique and (vi) the Executive has generated and will continue extraordinary value to generate goodwill for the Company and its affiliates Affiliates and that the Company’s ability to accomplish its purposes and to successfully pursue its business plan and compete in the course marketplace depends substantially on the skills and expertise of the Executive’s employment. AccordinglyTherefore, and in further consideration of the compensation being paid to the Executive hereunder, the Executive agrees that, during the Executive’s employment hereunder Employment Period and for a period of twelve (12) months thereafter following the termination of the Employment Period for any reason (the “Restricted Period”), the Executive agrees that the Executive will not, not directly or indirectly, indirectly own, manage, operate, control, be employed by (whether as an employeeparticipate in, consultantconsult with, independent contractor or otherwise, and whether or not for compensation) or render services to any personfor, firm, corporation or 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 locale manner engage in any business competing with the businesses of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 its Affiliates, in any country where the Company or its Affiliates conducts business; provided, however, that passive investments amounting to no more than three percent of its subsidiaries or affiliates, so long as the Executive has no active participation voting equity of a business and the Executive’s other current positions and activities described in the business of such corporationSection 3 will not be prohibited hereby.
Appears in 2 contracts
Samples: Employment Agreement (Conexant Systems Inc), Employment Agreement (Conexant Systems Inc)
Noncompetition. The In the event the Purchase Price is paid to the Executive, the Executive acknowledges shall not, for period of 12 months after the Date of Termination, engage in or become associated with any Competitive Activity. For purposes of this Section 9(b), a "Competitive Activity" shall mean any business or other endeavor that engages in any state 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 as of the Date of Termination; provided, that, a Competitive Activity shall not include (i) the Executive performs services of a unique nature for the Company that are irreplaceable, and that the Executive’s performance of such services to a competing business will result in irreparable harm any speaking engagement to the Companyextent such speaking engagement does not promote or endorse a product or service of the Business, (ii) the Executive has had and will continue writing of any book or article relating to have access subjects other than the Business (e.g., nonfiction relating to Confidential Information, which, if disclosed, would unfairly and inappropriately assist in competition against the Company Executive's career or any of its affiliates, general business advice) or (iii) the television, video or movie business. The Executive shall be considered to have become "associated with a Competitive Activity" if he becomes involved as an owner, employee, officer, director, independent contractor, agent, partner, advisor, or in any other capacity calling for the course rendition of the Executive’s employment by a competitor's personal services, the Executive would inevitably use or disclose such Confidential Informationwith any individual, (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 for a period of twelve (12) months thereafter (the “Restricted Period”), the Executive agrees that the Executive will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firmpartnership, corporation or other entity, in whatever form, organization that is engaged in a Competitive Activity and his involvement relates to a significant extent to the business Competitive Activity of international or domestic maritime transport of petroleum or petroleum-based productssuch entity; provided, including but not limited to crude oil and refined petroleum products (the “Business”)however, in each case in any locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit that the Executive shall not be prohibited from being a passive owner of not more (a) owning less than one five percent (15%) of the equity securities of a any publicly traded corporation, whether or not such corporation engaged in a business that is in competition with the Company or (b) serving as a director of a corporation or other entity the primary business of which is not a Competitive Activity. If, at any time, the provisions of its subsidiaries this Section 9(b) shall be determined to be invalid or affiliatesunenforceable, so long by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 9(b) shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and the Executive has no active participation in the business of such corporationagrees that this Section 9(b) as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
Appears in 2 contracts
Samples: Employment Agreement (Neptune Society Inc/Fl), Employment Agreement (Neptune Society Inc/Fl)
Noncompetition. The Executive acknowledges that (i) the Executive performs services of a unique an important nature for the Company that are irreplaceableand any of its subsidiaries and controlled affiliates, and that the Executive’s performance of such services to a competing business will may result in irreparable harm to the CompanyCompany and its subsidiaries and controlled affiliates, (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, Information (as defined below) and trade secrets which, if disclosed, would unfairly and inappropriately assist in competition against the Company or any of its subsidiaries and controlled affiliates, (iiiiv) in the course of the Executive’s employment by a competitor, the Executive would inevitably could use or disclose such Confidential InformationInformation and trade secrets, (ivv) the Company and its subsidiaries and controlled 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 subsidiaries and controlled affiliates in the course of the Executive’s employment. Accordingly, during the Executive’s employment hereunder Employment Term and for a 12 months following the Termination Date, or during such longer period of twelve (12not to exceed 18 months) months thereafter (that Executive is receiving severance benefits under the “Restricted Period”)Severance Plan or Section 6(c) above, the Executive agrees that the Executive will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or 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 a Competing Business in any locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Termor its subsidiaries and controlled affiliates conduct business. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from being a passive owner of not more than four and ninety nine one hundredths percent (14.99%) of the equity securities of a publicly traded corporation engaged in a business that is in competition with the Company or any of its subsidiaries or and controlled affiliates, so long as the 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 or its Subsidiaries), 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 Subsidiaries with respect to provision of information technology services to third party customers.1 As used herein, “competitive with the Company or its Subsidiaries” means the provision of the same or similar solutions or services of the Company or its Subsidiaries.
Appears in 2 contracts
Samples: Employment Agreement (Thoughtworks Holding, Inc.), Employment Agreement (Thoughtworks Holding, Inc.)
Noncompetition. The Executive Provider acknowledges that (i) Service Company will incur substantial costs in providing the Executive performs equipment, support services, personnel, and other items and services of a unique nature for the Company that are irreplaceable, the subject matter of this Agreement and that in the Executive’s performance process of such providing services to a competing business under this Agreement, Provider will result in irreparable harm to the Company, (ii) the Executive has had and will continue to learn or have access to financial and other Confidential Information, which, Information of Service Company to which Provider would not otherwise be exposed. Provider also recognizes that the services to be provided by Service Company will be feasible only if disclosed, would unfairly Provider operates an active practice to which the dentists associated with Provider devote their full time 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 employmentattention. Accordingly, Provider further agrees as follows:
(a) During the Term, except for any Clinic or other office or facility covered by this Agreement, Provider shall not establish, operate, or provide Dental Care at any dental office, clinic or other dental care facility anywhere within the Practice Territory nor have any ownership interest, direct or indirect, in any entity, or participate in any joint venture, which operates any such office, clinic or facility; and
(b) Except as specifically approved by Service Company in writing, during the Executive’s employment hereunder Term and for a period of twelve (12) months thereafter (five years immediately following the “Restricted Period”)date this Agreement is terminated for any reason, the Executive agrees that the Executive will not, Provider shall not directly or indirectly, ownindirectly own (excluding ownership of less than five percent (5%) of the equity of any publicly traded entity), manage, operate, control, be employed by lend funds to, lend its name to, maintain any interest in, or otherwise enter into, engage in, or promote or assist (whether as an employee, consultant, independent contractor financially or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or other entity, business, or enterprise which (i) provides, distributes, or promotes any type of management or administrative services or products to third parties in whatever form, engaged competition with Service Company in the business Practice Territory, or (ii) offers any type of international service or domestic maritime transport of petroleum or petroleum-based products, including but not limited product to crude oil and refined petroleum products (third parties substantially similar to those offered by Service Company to Provider in the “Business”), in each case in any locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment TermPractice Territory. Notwithstanding the foregoingabove restriction, nothing herein shall prohibit 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 Provider or any of its subsidiaries members from providing management and administrative services to its or affiliatestheir own dental practices after the termination of this Agreement, so and nothing herein shall prohibit Provider or its members from contracting with a third party manager to provide administrative or management services for its or their dental practices after termination of this Agreement as long as such relationship complies with the Executive has no active participation in the business provisions of such corporationthis section.
Appears in 2 contracts
Samples: Service Agreement, Service Agreement (American Dental Partners Inc)
Noncompetition. The Executive expressly acknowledges that (i) the Executive performs services of a unique nature for the Company that are irreplaceableand its Subsidiaries market and sell products globally, and that given the Executive’s performance substantial experience and expertise in the industry including his/her significant exposure, access to, and participation in the development of such services to the Company’s and its Subsidiaries’ strategy, marketing, intellectual property and confidential and proprietary information, his/her business affiliation with any individual or entity that sells or develops products similar to, or that may serve as a competing business will result in substitute for, the Company’s or any of its Subsidiaries’ products, would cause substantial and irreparable harm to the Company’s, (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 and/or 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 employmentSubsidiaries’ business. Accordingly, during the Executive’s employment hereunder and for a period of twelve (12) months thereafter (the “Restricted Period”), the Executive agrees that the Executive will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 during his/her employment with the Company or any of its subsidiaries Subsidiaries, and for a period after the termination of his/her employment with the Company and its Subsidiaries equal to (i) thirty-six (36) months if the Executive’s employment by the Company or affiliatesa 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, so long as the Executive has no active participation shall not, directly or indirectly, other than on behalf of the Company or its Subsidiaries, participate or become involved as an owner, partner, member, director, officer, employee, or consultant, or otherwise enter into any business relationship, with any individual or entity anywhere in the business world that develops, produces, manufactures, sells, or distributes starch, corn, rice, potato, stevia, strawberry and other agricultural raw materials, oils, sweeteners, starches, concentrates, essences or other products produced by the Company or any of its Subsidiaries or that could be used as a substitute for such corporationproducts 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, Caramel Color, fruit concentrates, fruit purees, fruit essences or formulated fruit products, vegetable concentrates, vegetable purees, vegetable essences or formulated vegetable products, hydrocolloid products, systems and blends, and specifically including but not limited to the following entities that manufacture such or similar products: ADM, Cargill, Bunge, Roquette, and Xxxx & Xxxx.
Appears in 2 contracts
Samples: Executive Severance Agreement (Ingredion Inc), Executive Severance Agreement (Ingredion Inc)
Noncompetition. The Executive acknowledges that (i) the Executive performs services of a unique nature for the Company that are irreplaceable, and that the Executive’s performance of such services to a competing business will result in irreparable harm to the Company. Accordingly, Executive agrees that during the period (the “Noncompetition Period”) commencing on the date hereof and ending on the date that is three (3) years after the date of his cessation of employment with the Company, he will not, without the prior consent of the Board, either directly or indirectly, in any capacity whatsoever, (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 no more than five percent (5%) of the publicly traded securities of a company whose securities are traded on a national stock exchange) or otherwise become employed by or with, 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, Pitney Xxxxx, NeoPost, Xxxxxx.xxx, Xxxxxx Rubbermaid, Kewill and any corporate parents or 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 has had and will continue to have access to Confidential Information, which, if disclosed, would unfairly and inappropriately assist in competition against from future employment with all companies that compete with the Company or any of its affiliatesGroup, (iii) in the course and as such, will constrain some 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 overall possibilities for the Company and its affiliates in the course of the Executive’s future employment. AccordinglyBy executing this Agreement, during Executive expressly represents that his training, education and background are such that his ability to earn a living shall not be impaired by the Executive’s employment hereunder and for a period of twelve (12) months thereafter (the “Restricted Period”), the Executive agrees that the Executive will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or other entity, foregoing restriction 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 subsidiaries or affiliates, so long as the Executive has no active participation in the business of such corporationthis Agreement.
Appears in 2 contracts
Samples: Employment Agreement (RedRoller Holdings, Inc.), Employment Agreement (RedRoller Holdings, Inc.)
Noncompetition. The Executive acknowledges Each of Danixx X. Xxxxxx, Xxmex X. Xxxxxxxxxx xxx Josexx X. Xxxxxxxxx (xxllectively, the "Founding Stockholders") hereby agrees that (i) during the Executive performs services of a unique nature for period commencing on the Company that are irreplaceable, Closing Date and that ending on 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 fourth anniversary of the Executive’s employment by a competitorClosing Date, 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 for a period of twelve (12) months thereafter (the “Restricted Period”), the Executive agrees that the Executive will he shall not, directly or indirectly, own, manage, operate, control, be employed by (whether A) as an individual proprietor, partner, member, principal, officer, employee, consultantagent, independent contractor consultant or otherwisestockholder, and whether or not for compensation) develop, produce, market, sell or render (or assist any other person in developing, producing, marketing, selling or rendering) products or services to competitive anywhere in the United States or elsewhere in the world with, or (B) engage in business with, serve as an agent or consultant to, or become an individual proprietor, partner, member, principal or stockholder (other than a holder of less than 1% of the outstanding voting shares of any publicly held company) of or become employed in an executive capacity by, any person, firm, corporation firm or other entity, entity ("Competitor") a substantial portion of whose business competes anywhere in whatever form, engaged the United States or elsewhere in the world with a substantial portion of the business of international or domestic maritime transport of petroleum or petroleum-based productsthe Parent, including but not limited to crude oil and refined petroleum products (the “Business”)CERA Inc., in each case in any locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 MGI or any of its subsidiaries their respective Subsidiaries (collectively, the "MGI/CERA Group") that relates to the financial information, financial analysis, energy information and analysis or affiliatesany other business then engaged in by any member of the MGI/CERA Group; provided that this Section 5.1 shall not be deemed to prohibit any of the Founding Stockholders from teaching courses at educational institutions or writing books or articles for public sale or making appearances on television or preparing or otherwise participating in television programs; and provided, so long further, that if the employment of a Founding Stockholder with CERA Inc. shall be terminated after the Closing Without Cause (as such term shall be defined in the Executive has no active participation applicable Employment Agreement between CERA Inc. and such Founding Stockholder) or for Good Reason (also as shall be defined in such Employment Agreement), the noncompetition period set forth in this Section 5.1 shall terminate with respect to such Founding Stockholder on the earlier of (x) the fourth anniversary of the Closing Date and (y) the first anniversary of the date of termination of such Founding Stockholder's employment. For the purposes of this Section 5.1, a "substantial portion" (x) in the case of the business of such corporation.Competitor shall mean a line or lines of business that account for more than 50% of the consolidated revenue of Competitor
Appears in 2 contracts
Samples: Plan of Merger and Exchange Agreement (Global Decisions Group LLC), Plan of Merger and Exchange Agreement (Global Decisions Group LLC)
Noncompetition. (a) The Executive acknowledges that (i) the Executive performs services of a unique nature for the Company that are 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 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 for a period of twelve (12) months thereafter (the “Restricted Period”), the Executive agrees that the Executive will not, directly or indirectlyindirectly through its subsidiaries, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or other entity, in whatever form, is engaged in the business of international or domestic maritime transport of petroleum or petroleumowning, managing, operating and developing rent-based productsto-own stores (collectively, including but not limited to crude oil and refined petroleum products the "Purchaser Activities") throughout the United States (the “Business”"Territory"). Waltx xxxresents and acknowledges that the goodwill of the Company and the Purchaser Activities extend throughout the Territory. Following the date hereof, the Company shall continue to conduct the Purchaser Activities throughout the Territory. Waltx xxxnowledges that, to protect adequately the interests of the Company in its businesses in the Territory, it is essential that any noncompete agreement with respect thereto cover the entire Territory.
(b) In consideration of the consideration paid to Waltx xxxsuant to this Agreement, Waltx xxxeby agrees that during the period commencing on the date hereof and ending on the fifth (5th) anniversary of the date hereof (the "Noncompete Period"), no Related Party shall (without the prior written consent of the Company) directly or indirectly in each case the Territory engage in, have any equity or profit interest in, make any loan to or guarantee any obligation of or with respect to, or render services (of an executive, advertising, marketing, sales, administrative, supervisory or consulting nature) to, any business conducting Purchaser Activities, except in any locale connection with the course of the performance of any country (and including, for duties the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business Related Party may have as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 consultant to the Company or any successor or affiliate of its subsidiaries the Company.
(c) If a judicial determination is made that any of the provisions of this Section 4.3 constitutes an unreasonable or affiliatesotherwise unenforceable restriction against Waltx, xxe provisions of this Section 4.3 shall be rendered void only to the extent that such judicial determination finds such provisions to be unreasonable or otherwise unenforceable. In this regard, the parties hereto hereby agree that any judicial authority construing this Agreement shall be empowered to sever any portion of the Territory, any prohibited business activity or any time period from the coverage of this Section 4.3 and to apply the provisions of this Section 4.3 to the remaining portion of the Territory, the remaining business activities or the remaining time period not so long severed by such judicial authority. The time period during which the prohibitions set forth in this Section 4.3 shall apply shall be tolled and suspended as to Waltx xxx a period equal to the Executive has no active participation aggregate quantity of time during which Waltx xxxlates such prohibitions in the business of such corporationany respect.
Appears in 2 contracts
Samples: Noncompetition and Consulting Agreement (Alrenco Inc), Noncompetition and Consulting Agreement (Alrenco Inc)
Noncompetition. The Executive acknowledges that (i) the Executive performs services of a unique nature for the Company that are 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, 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 is expected 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 for a period of twelve one (121) months thereafter (the “Restricted Period”)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 services, including, without limitation, brokerage or advisory services, to any person, firm, corporation or other entity, in whatever form, engaged in the business of international or domestic maritime transport of petroleum or petroleumowning, operating, developing and redeveloping retail-based products, including but not limited to crude oil and refined petroleum products or mixed use commercial real estate properties (the “Business”), in each case ) or in any locale of any country (and including, for the avoidance of doubt, shipping through international waters) other business in which or from which the Company conducts business as or any of its affiliates is engaged on the end 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 the Employment TermAmerica. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from (i) being a passive owner of not more than one five percent (15%) of the equity securities of a publicly traded corporation engaged in a business that is in competition with the Company or any of its subsidiaries or affiliates, so long as the Executive has no active participation in the business of such corporationcorporation 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 the termination of the Executive’s employment hereunder, as long as (a) 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 writing the Executive’s role with such firm, corporation or other entity, in the case of both (a) and (b), prior to termination of the Executive’s employment. In addition, the provisions of this Section 10(b) shall not be violated by the Executive 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 affiliates so long as: (i) the Executive and such subsidiary, division or unit does not engage in a business in competition with the Company or any of its affiliates; and (ii) the Executive informs such entity of the restrictions contained in this Section 10.
Appears in 2 contracts
Samples: Employment Agreement (Broad Street Realty, Inc.), Employment Agreement (Broad Street Realty, Inc.)
Noncompetition. The Executive acknowledges that (i) the Executive performs services of a unique nature for and agrees with the Company that in the course of his employment with the Company and its Subsidiaries he shall become familiar with the Company's trade secrets and with other Confidential Information concerning the Company and its Subsidiaries, that Executive's services to the Company and its Subsidiaries are irreplaceableunique in nature and of an extraordinary value to the Company, and that the Executive’s performance of such services Company would be irreparably damaged if Executive were 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 for a period of twelve (12) months thereafter (the “Restricted Period”), the Executive agrees that the Executive will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render provide similar services to any person, firm, corporation person or 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 entity competing with the Company or any of its subsidiaries Subsidiaries or affiliates, so long engaged in similar business. In consideration of and as an inducement to the Company's entering into this Agreement and issuing the Executive has no active participation Securities hereunder, and in further consideration of Executive's compensation and severance payments under Executive's employment arrangement with the Company and its Subsidiaries, Executive accordingly covenants and agrees with the Company that during the Noncompete Period (as defined below), Executive shall not, directly or indirectly, either for himself or for any other individual, corporation, partnership, joint venture or other entity, participate in any business or enterprise that engages or proposes to engage in any business conducted by the Company or any of its Subsidiaries (including, but not limited to, the sale or provision of local switched dialtone telecommunication services) in any geographical market in which the Company or any of its Subsidiaries conducts business (or any geographical market with respect to which the Company proposes in good faith to conduct business, as evidenced by an Approved Business Plan or a Board resolution authorizing the Company to use its resources to investigate or otherwise pursue an opportunity in such market). For purposes of this Agreement, the term "participate in" shall include, without limitation, having any direct or indirect interest in any corporation, partnership, joint venture or other entity, whether as a sole proprietor, owner, stockholder, partner, joint venturer, creditor or otherwise, or rendering any direct or indirect service or assistance to any individual, corporation, partnership, joint venture and other business entity (whether as a director, officer, manager, supervisor, employee, agent, consultant or otherwise), other than ownership of up to 2% of the outstanding stock of any class which is publicly traded. Executive agrees that this covenant is reasonable with respect to its duration, geographical area, and scope.
Appears in 2 contracts
Samples: Executive Securities Agreement (Comple Tel LLC), Executive Securities Agreement (Comple Tel LLC)
Noncompetition. The Executive acknowledges that (i) the Executive performs services of a unique nature for the Company that are 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 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 for a period of twelve eighteen (1218) months thereafter (the “Restricted Period”)thereafter, the Executive agrees that the Executive will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or other entity, in whatever form, engaged in the business design, distribution, marketing or manufacturing of international tabletop, storage or domestic maritime transport food preparation products for the consumer and foodservice markets, with operations in the United States, Canada, Mexico, Latin America, Africa, Europe and Asia, the design, distribution, marketing or manufacturing of petroleum bakeware, beverageware, serveware, storageware, flatware, dinnerware, crystal, buffetware, hollowware, premium spirit bottles, cookware, gadgets, candle, floral glass containers, and other similar houseware or petroleum-based kitchen products, including but not limited to crude oil and refined petroleum products (the “Business”), in each case or in any locale of any country (and including, for the avoidance of doubt, shipping through international waters) other material business in which or from which the Company conducts business as or any of its subsidiaries or affiliates is engaged on the end date of the Employment Termtermination or in which they have planned, on or prior to such date, to be engaged in on or after such date. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from being a passive owner of not more than one two percent (12%) of the equity securities of a publicly traded corporation engaged in a business that is in competition with the Company or any of its subsidiaries or affiliates, so long as the Executive has no active participation in the business of such corporation.
Appears in 2 contracts
Samples: Employment Agreement (EveryWare Global, Inc.), Employment Agreement (EveryWare Global, Inc.)
Noncompetition. The Executive acknowledges that (i) the Executive performs has and will continue to perform services of a unique nature for the Company that are irreplaceable, and that the Executive’s '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 for a period of twelve (12) months thereafter (the “Restricted Period”), the Executive agrees that the Executive will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any of the following entities: Xxxxxxx Group Inc., PHI, 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 principal of any entity leasing helicopter aircraft to or buying helicopter aircraft from any of the Company's leasing clients or any of their affiliates, subsidiaries and/or related entities, including any other person, firm, corporation or other entity, in whatever form, which following the date hereof is or subsequently becomes engaged in the business of international or domestic maritime transport of petroleum or petroleum-based productsproviding helicopter aviation services (collectively, including but not limited to crude oil and refined petroleum products the “Prohibited Activities”) during the period from the date hereof until March 30, 2014 (the “BusinessRestricted Period”), in each case in any locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 a business that is in competition with the Company or any of its subsidiaries or affiliatesProhibited Activities, so long as the Executive has no active participation in the business of such corporationcorporation or (ii) employed by, or providing services to, a subsidiary, division or unit of any entity that engages in any such Prohibited Activities so long as the Executive does not provide any services to such portion of the entity's business that engages in such Prohibited Activities. It is further agreed that, and notwithstanding the foregoing, Executive is a licensed attorney at law and that none of the restrictions or Prohibited Activities referenced above shall be deemed to 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 entities specifically referred to herein as and to the extent required to comply with applicable rules of professional conduct for attorneys.
Appears in 2 contracts
Samples: Separation and Consulting Agreement, Separation and Consulting Agreement (Era Group Inc.)
Noncompetition. The Executive acknowledges Employee agrees that (i) the Executive performs services of a unique nature for the Company that are 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 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 term of this Agreement and for a period of twelve one (121) months thereafter (year after the “Restricted Period”)last payment from the Company to Employee has been delivered, the Executive agrees that the Executive Employee will not, directly or indirectlywithout the prior written consent of the Company (which consent may be withheld for any reason), ownprovide services, managewithin the United States and in locations where Company customers are located, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render substantially similar to the services to be provided by Employee under this Agreement to any person, firm, corporation person or 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from being a passive owner of not more than one percent (1%) of the equity securities of a publicly traded corporation entity engaged in a business that which is in competition substantially similar to the Company's Business, or which can reasonably be expected to compete with the Company Company's Business. Notwithstanding anything herein which may be construed to the contrary, Employee shall be free to use and employ Employee's general skills, know-how and expertise, and to use, disclose and employ any generalized ideas, concepts, know-how, methods, techniques or any skills gained or learned during the course of its subsidiaries or affiliatesproviding the services hereunder, so long as Employee acquires and applies this information without disclosure of any Confidential Information of the Executive has no active participation Company and without violating the terms of this Section 17. The term of this noncompetition covenant shall be tolled during any period of actual competition by the Employee and/or any period of litigation required to enforce the Employee's obligations under this Agreement. The Company acknowledges that the Employee is a part-time employee of United Therapeutics Corporation and Northern Therapeutics Corporation, and the Company agrees that Employee's work for such companies, as of the Effective Date, does not fall within the scope of services that competes with the Company's Business; provided however, in the business event the scope of the services provided by Employee to such corporationcompanies or the scope of the Company's Business change such that the services provided by Employee to such companies or other third parties compete with the Company's Business, the provision of this Paragraph with respect to noncompetition will apply and may be enforced by the Company.
Appears in 2 contracts
Samples: Employment Agreement (Molichem Medicines Inc), Employment Agreement (Molichem Medicines Inc)
Noncompetition. The Executive acknowledges and agrees that (i) in the performance of this Agreement, he will be 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 time and money and constitutes valuable and unique property of the Company. The Executive further understands and agrees that the foregoing makes it necessary, for the protection of the Company’s business, that the Executive performs services of a unique nature for not compete with the Company that are irreplaceable, during the Term 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 not Compete with the Company or any of its affiliatesfor a reasonable period after the Term, (iii) as further described 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 employmentfollowing provisions. Accordingly, during the Executive’s employment hereunder and for a period of twelve (12) months thereafter (the “Restricted Period”), the Executive agrees that so long as he is an employee of the Company and for 12 months thereafter:
(a) The Executive will not, directly or indirectly, ownindividually or as a consultant to, manage, operate, control, be employed by (whether as an or employee, consultantofficer, independent contractor or otherwisedirector, and whether or not for compensation) or render services to any personmanager, firmstockholder, corporation partner, member or other owner or participant in any business entity, other than the Company or a Related Company, engage in whatever form, engaged in the business of international or domestic maritime transport of petroleum assist any other person or petroleum-based products, including but not limited entity to crude oil and refined petroleum products (the “Business”), in each case engage in any locale of business which directly or indirectly competes with any country (and including, for the avoidance of doubt, shipping through international waters) business in which or from which the Company conducts business as 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 time of the end termination of the Employment Term. Notwithstanding Executive’s engagement hereunder, anywhere in the foregoingUnited States or anywhere else in the world where the Company or any Related Company does business, or plans to do business or is actively evaluating doing business; provided that nothing contained herein shall prohibit the Executive from being a passive owner of not more less than one percent (1%) of the equity outstanding stock or any class of securities of a any corporation or other entity that is publicly traded corporation engaged or privately held; and
(b) 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 solicit or endeavor to entice away from the Company or any Related Company, or offer employment or any consulting arrangement to, or otherwise materially interfere with the business relationship of the Company or any Related Company with, any person or entity who is, or was within the one-year period immediately prior to the termination of the Executive’s engagement hereunder, (i) employed by or a consultant to the Company or any Related Company or (ii) a customer or client of, supplier to or other party having material business that is in competition relations with the Company or any of its subsidiaries or affiliates, so long as the Executive has no active participation in the business of such corporationRelated Company.
Appears in 2 contracts
Samples: Employment Agreement (Inception Mining Inc.), Employment Agreement (Inception Mining Inc.)
Noncompetition. The Executive Practice hereby recognizes and acknowledges that (i) -------------- Business Manager will incur substantial costs in providing the Executive performs equipment, support services, personnel, management, administration, and other items and services that are the subject matter of a unique nature 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 Company that are irreplaceableprotection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the Executive’s following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of such 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 competing business will result in irreparable harm to medical office, clinic or other health care facility anywhere within the Company, (ii) Practice Territory. During the Executive has had Term of this Management Services Agreement and will continue to have access to Confidential Information, which, if disclosed, would unfairly and inappropriately assist in competition against except for the Company or any of its affiliates, (iii) in the course operation of the Executive’s employment 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 competitorDispensary Business at any other office or facility within the Practice Territory.
(b) Except as specifically agreed to by Business Manager in writing, the Executive would inevitably use or disclose such Confidential Information, (iv) the Company Practice commits 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, agrees that during the Executive’s employment hereunder Term of this Management Services Agreement and for a period of twelve five (125) months thereafter (years from the “Restricted Period”)termination date of this Management Services Agreement, except in the Executive agrees that the Executive will notevent Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly, ownindirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity), manage, operate, control, or otherwise be employed by associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (whether as an employeei) having to do with the provision, consultantdistribution, independent contractor promotion or otherwise, and whether advertising of any type of management or not for compensationadministrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or render services to any person, firm, corporation or other entity, in whatever form, engaged product in the business of international or domestic maritime transport of petroleum or petroleum-based products, including but not limited Practice Territory to crude oil and refined petroleum products (the “Business”), in each case in any locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Termthird parties similar to those offered by Business Manager to Practice. Notwithstanding the foregoingabove restriction, nothing herein shall prohibit 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 Practice or any of its subsidiaries holders from providing management and administrative services to its or affiliatestheir 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, so long as the Executive has no active participation except in the business 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 corporationagreement 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. The Executive acknowledges that (ia) the Executive performs services of a unique nature for the Company that are 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 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 for For a period of twelve (12) months thereafter three years commencing on the Closing Date (the “Restricted Non-Competition Period”), the Executive Seller agrees that the Executive will notnot to, and agrees to cause its Affiliates (other than any of Seller’s Affiliates providing incidental pension disbursement services and/or providing any services to any Employee Benefit Plan of Seller) not to, at any time, directly or indirectly, anywhere in the world, so long as the Company or a Subsidiary continues to engage in a like business in such location:
(i) own, manage, operate, control, or be employed by connected in any manner with the ownership, management or control of any Person that engages in a business which provides benefits or human resources consulting or outsourcing in competition with the Business as conducted on the Closing Date (whether as an employeea “Competitive Business”); or
(ii) interfere with, consultantdisrupt or attempt to disrupt the relationship, independent contractor contractual or otherwise, between the Company or any Subsidiary and any customer, supplier of the Company or any Subsidiary.
(b) For a period of two years commencing on the Closing Date (the “Non-Solicitation Period”), Seller agrees not to, and agrees to cause its Affiliates not to, at any time, directly or indirectly, solicit employment for or employ Transferred Employees or induce any Transferred Employee to leave the employ of the Company or any Subsidiary.
(c) In the event of a breach by Seller of the terms of this Section 7.3, Buyer shall be entitled, if it shall so elect, to institute legal proceedings to obtain damages for any such breach, or to enforce the specific performance of such terms by Seller (or such applicable Affiliate of Seller) and to enjoin Seller (or such applicable Affiliate of Seller) from any further violation and to exercise such remedies cumulatively or in conjunction with all other rights and remedies provided by law. Seller acknowledges that the remedies at law for any breach by Seller or its Affiliates of the provisions of this Section 7.3 may be inadequate and that Buyer shall be entitled to injunctive relief against Seller (or such applicable Affiliate of Seller) in the event of any breach without the necessity to post any bond therefor. The existence of any claim or cause of action of Seller against Buyer based upon this Agreement shall not constitute a defense to the obligations of Seller under this Section 7.3.
(d) Notwithstanding anything in Section 7.3(a) to the contrary, nothing herein shall in any way restrict or limit the rights of Seller or any of its Affiliates or any successor thereof (i) as an investor to hold and make investments not in excess of 10% of the outstanding securities of any corporation the securities of which are listed on a nationally recognized securities exchange or traded in a nationally recognized over-the-counter market and (ii) to continue to carry on any business in which any of them is engaged as of the date hereof, whether or not for compensation) or render services to any person, firm, corporation or other entitysuch business is a Competitive Business, in whatever form, engaged in a manner that is not substantially different from 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) manner in which Seller or from which any of its Affiliates, as the Company conducts case may be, carries on such business as of the end date hereof.
(e) Notwithstanding anything in Section 7.3(a) to the contrary, should any Person not a party hereto engaged in a Competitive Business acquire Seller, directly or indirectly, by merger, acquisition or a purchase of substantially all of the Employment Termassets of Seller, this Section 7.3 shall not thereafter apply to the surviving party so long as (i) following such acquisition such Competitive Business shall not be conducted, directly or indirectly, through Seller, any of its pre-Closing Affiliates or any of their successors or assignees and (ii) none of Seller, its pre-Closing Affiliates, any of their successors or assignees or their employees shall provide substantial assistance to the Competitive Business.
(f) Notwithstanding anything in Section 7.3(a) to the contrary, if during the Non-Competition Period, Seller or any Affiliate thereof (an “Acquiring Person” for purposes of this Section) shall acquire (directly or indirectly) any entity operating a Competitive Business then such Acquiring Person shall be obligated, within three months after consummation of such acquisition, offer to sell and assign such Competitive Business to Buyer at the fair market value of such Competitive Business. The terms and conditions of such sale shall include (i) (A) an assignment by Seller to Buyer of its rights to the extent related to the Competitive Business under the acquisition and related documents under which it acquired such Competitive Business and (B) a consent by the seller of such Competitive Business acknowledging such assignment and agreeing that Buyer may enforce such acquisition and related documents against such seller or (ii) representations, warranties and indemnification provisions substantially similar to those made in favor of the Acquiring Person under such acquisition and related documents. Seller shall give Buyer written notice of any such transaction, which notice shall describe in reasonable detail the Competitive Business being offered to Buyer. Representatives of Buyer and the Acquiring Person shall meet within 15 days of the date such offer is made and attempt mutually to determine in good faith such fair market value. If Buyer and the Acquiring Person are unable to determine a mutually acceptable fair market value within 20 days after their initial meeting, Buyer and the Acquiring Person shall mutually engage (and share equally in the fees and expenses of) an investment banking firm to determine within 20 days of such firm’s engagement the fair market value of the Competitive Business (and associated liabilities), which determination shall be binding upon Buyer and the Acquiring Person for purposes of the Acquiring Person’s offer to sell the Competitive Business to Buyer as contemplated herein. In the event that Buyer does not accept the offer within thirty days of final determination of such fair market value, the Acquiring Person shall be free to sell the Competitive Business to a third party or to operate the Competitive Business, as the Acquiring Person may elect, free of the restrictions set forth in Section 7.3(a); provided, however, that if Seller elects to operate the Competitive Business, Seller shall not, (i) for the remainder of the Non-Solicitation Period, hire any Transferred Employee (other than a Transferred Employee that either Seller or one of its Affiliates is permitted to employ pursuant to Section 7.3(g)) or (ii) for the remainder of the Non-Competition Period, solicit the business of any customer of the Business (other than any customer which is also a customer of the Competitive Business at the time of its acquisition). The parties agree that the operation of the Competitive Business by the Acquiring Person during the pendency of the procedures described above shall not be deemed to violate Section 7.3(a).
(g) Notwithstanding anything in Section 7.3(b) to the foregoingcontrary, nothing herein shall prohibit in any way restrict or limit the Executive from being rights of Seller or any of its Affiliates to employ a passive owner of not more than one percent Transferred Employee who (1%i) of the equity securities of a publicly traded corporation engaged in a business that is in competition with terminated by the Company or any of its subsidiaries Affiliates, (ii) responds to a general employment advertisement by Seller or affiliates, so long as the Executive has no active participation any of its Affiliates in the business ordinary course of its business, (iii) responds to a solicitation from an employment agency or search firm that is not directed to contact such Transferred Employee by Seller or any of its Affiliates, or (iv) contacts Seller or any of its Affiliates for employment on such Transferred Employee’s own initiative without any solicitation from Seller or any of its Affiliates.
(h) For a period of three years commencing on the Closing Date, Seller agrees not to, and agrees to cause its Affiliates not to, use in any Competitive Business the customer lists of the Business that have been delivered to the Company pursuant to this Agreement.
(i) The necessity of protection against competition from Seller and its Affiliates and the nature and scope of such corporationprotection has been carefully considered by the parties to this Agreement based upon the consultation with and advice from their respective legal counsel. The parties agree and acknowledge (i) that the duration, scope and geographic areas applicable to the covenants contained in this Section 7.3 are fair, reasonable and necessary, and do not impose a greater restraint than is necessary to protect the goodwill or other business interest of the Business and Buyer’s investment therein and its business goodwill, (ii) that adequate compensation has been received by Seller for such obligations, and (iii) that these obligations do not prevent Seller and its Affiliates from earning a livelihood or conducting its remaining businesses. If any provision of this Section 7.3 is held to be illegal, invalid or unenforceable under present or future laws effective during the Non-Competition Period, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable, but no such added provision shall be broader or result in a greater limitation of the activities of Seller than is provided in this Section 7.3 on the date hereof. If the automatic reformation provision contained in this Section 7.3(i) for any reason fails or is held to be illegal, invalid or unenforceable, the parties request that the Governmental Entity making such determination interpret, alter, amend and modify the terms of this Section 7.3 to include as much of the scope, time period and geographic area specified therein as may be possible without rendering any provision of this Section 7.3, illegal, invalid or unenforceable, but no such modified term shall be broader or result in a greater limitation of the activities of Seller and its Affiliates than is provided in this Section 7.3 on the date hereof.
Appears in 2 contracts
Samples: Purchase Agreement (Affiliated Computer Services Inc), Purchase Agreement (Mellon Financial Corp)
Noncompetition. The Executive acknowledges (a) Employee agrees that (i) during the Executive performs services term of a unique nature for the Company that are irreplaceablethis Agreement and, and that the Executive’s performance upon termination 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 ExecutiveEmployee’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 for a period of twelve three (123) months thereafter years thereafter, he shall not:
(i) Call upon, solicit, divert, take away or attempt to call upon, solicit, divert or take away any existing customers, suppliers, businesses, or accounts of the Business in connection with any business substantially similar to the Business in the territory defined as 100 miles in and around the Company’s and its affiliates operations (the “Restricted PeriodTerritory”);
(ii) Hire, attempt to hire, contact or solicit with respect to hiring for himself or on behalf of any other person any present employee of the Executive agrees Company in the Business;
(iii) Lend credit, money or reputation for the purpose of establishing or operating a business substantially similar to the Business in the Territory;
(iv) Do any act that Employee knew or reasonably should have known might directly injure the Executive will notCompany in any material respect or that might divert customers, directly suppliers or indirectlyemployees from the Business; and
(v) Without limiting the generality of the foregoing provisions, ownconduct a business substantially similar to the Business under the name “F.Y.I. Incorporated” or any other trade names, managetrademarks or service marks used (prior to the termination of this Agreement) by the Company or its affiliates. As used in paragraph 9(a), operatereferences to the business, controlcustomers, be employed by (whether as an employeeTerritory, consultant, independent contractor or otherwise, and whether or not for compensation) or render services etc. of the Company refer to the status of the Company prior to any personChange in Control (i.e., firmsuch breadth of business, corporation or other entitycustomers, Territory, etc. shall not automatically be expanded to include those of a successor to the Company resulting from a Change in whatever formControl). In the course of Employee’s employment with the Company, engaged Employee will become exposed to certain of the Company’s confidential information and business relationships, which the above covenants are designed to protect. The covenants in the business of international or domestic maritime transport of petroleum or petroleum-based products, including but not limited subsections (i) through (v) are intended to crude oil and refined petroleum products (the “Business”), in each case restrict Employee from competing in any locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 manner with the Company or any of its subsidiaries or affiliates, so long as the Executive has no active participation Business in the business activities that have heretofore been carried on by the Company or its affiliates. The obligations set forth in subsections (i) through (v) above shall apply to actions by Employee, through any form of ownership, and whether as principal, officer, director, agent, employee, employer, consultant, stockholder 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 Employee from being the holder of up to 5.0% in the aggregate of any class of securities of any corporation engaged in the activities described in subsection (i) through (v) above, provided that such corporationsecurities are listed on a national securities exchange or reported on the Nasdaq National Market.
Appears in 2 contracts
Samples: Employment Agreement (Fyi Inc), Employment Agreement (Fyi Inc)
Noncompetition. The During the Employment Term and (unless this Agreement terminates pursuant to clause (v) of Section 7(a)) for the Restricted Period thereafter, the Executive acknowledges shall not engage in or become associated with any Competitive Activity. For purposes of this Section 10(b), the “Restricted Period” means the 12 month period following the Date of Termination. For purposes of this Section 10(b), a “Competitive Activity” shall mean any business or other endeavor that engages in any country in which the Company has significant business operations to a significant degree in a business that directly competes with all or any substantial part of any of the Company’s businesses of (i) the Executive performs services of a unique nature for the Company that are irreplaceableproducing radio, television and that the Executive’s performance of such services to a competing business will result in irreparable harm to the Companyother video programs, (ii) designing, developing, licensing, promoting and selling merchandise through catalogs, direct marketing, Internet commerce and retail stores of the Executive has had and will continue to have access to Confidential Information, which, if disclosed, would unfairly and inappropriately assist product categories in competition against which the Company so participates using the name, likeness, image, or voice of any Company employee (without limitation, Company employees for the purposes of its affiliatesthis Section 10(b) shall be deemed to include Xxxxxx Xxxxxxx and Xxxxxx Xxxxxxx) to promote or market any such product or service, (iii) the creation, publication or distribution of regular or special issues of magazines and operation of websites specifically related to the Company’s business, and (iv) any other business in which the course Company is engaged, or taken steps to engage, during the term of this Agreement. The Executive shall be considered to have become “associated with a Competitive Activity” if he becomes involved as an owner, employee, officer, director, independent contractor, agent, partner, advisor, or in any other capacity calling for the rendition of the Executive’s employment by a competitorpersonal services, the Executive would inevitably use or disclose such Confidential Informationwith any individual, (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 for a period of twelve (12) months thereafter (the “Restricted Period”), the Executive agrees that the Executive will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firmpartnership, corporation or 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from being a passive owner of not more than one percent (1%) of the equity securities of a publicly traded corporation organization that is engaged in a business Competitive Activity, unless the Executive has no direct or indirect involvement in, or direct or indirect authority over, the Competitive Activity conducted by such organization; provided, however, that the Executive shall not be prohibited from (a) owning less than two percent of any publicly traded corporation, whether or not such corporation is in competition with the Company or any (b) serving as a director of its subsidiaries a corporation or affiliates, so long as the Executive has no active participation in the other business if less than 10% of such corporation’s (and its affiliates’) or other business’ (and its affiliates’) revenues are derived from a Competitive Activity. If, at any time, the provisions of this Section 10(b) shall be determined to be invalid or unenforceable, by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 10(b) shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and the Executive agrees that this Section 10(b) as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
Appears in 2 contracts
Samples: Employment Agreement (Martha Stewart Living Omnimedia Inc), Employment Agreement (Martha Stewart Living Omnimedia Inc)
Noncompetition. The Executive Employee acknowledges that (i) the Executive performs Employee will perform services of a unique nature for the Company that are irreplaceable, and that the ExecutiveEmployee’s performance of such services to a competing business will result in irreparable harm to the CompanyCompany Group, (ii) the Executive has had and Employee will continue to have access to Confidential Information, Information which, if disclosed, would unfairly and inappropriately assist in competition against the Company or any of its affiliatesGroup, and (iii) the Employee will generate goodwill for the Company Group 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 ExecutiveEmployee’s employment. Accordingly, during the ExecutiveEmployee’s employment hereunder and for a period of twelve (12) months thereafter (the “Restricted Period”)thereafter, the Executive Employee agrees that the Executive Employee will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or other entity, in whatever form, engaged in substantial competition with the Company Group or in any other material business in which the Company Group is engaged on the date of international termination or domestic maritime transport of petroleum in which the Company Group has planned, on or petroleum-based productsprior to such date, including but not limited to crude oil and refined petroleum products (the “Business”)be engaged in on or after such date, in each case in any locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company Group conducts business as of the end of the Employment Termbusiness. Notwithstanding the foregoing, nothing herein shall prohibit the Executive Employee from being a passive owner of not more than one percent (1%) of the equity securities of a publicly traded corporation engaged engaged, 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 business company that is is, in competition with the Company or any of its subsidiaries or affiliatesGroup, so long as the Executive Employee has no active participation in the business of such corporationcompany.
Appears in 2 contracts
Samples: Employment Agreement (TGPX Holdings I LLC), Employment Agreement (TGPX Holdings I LLC)
Noncompetition. The Executive Employee acknowledges that (i) the Executive Employee performs services of a unique nature for the Company that are irreplaceable, and that the ExecutiveEmployee’s performance of such services to a competing business “Competitive Business” (as defined below) will result in irreparable harm to the Company, (ii) the Executive Employee has had and will continue to have access to Confidential Information, Information which, if disclosed, would unfairly and inappropriately assist in competition against the Company or any of and its affiliates, (iii) in the course of the ExecutiveEmployee’s employment by a competitorCompetitive Business, the Executive Employee would inevitably use or disclose such Confidential Information, (iv) the Company and its affiliates have substantial relationships with their customers and the Executive Employee 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 Employee has generated and will continue to generate goodwill for the Company and its affiliates in the course of the ExecutiveEmployee’s employment, (vi) the Company has invested significant time and expense in developing the Confidential Information and goodwill, and (vii) the Company’s operations and the operations upon with the Employee works are nationwide in scope. Accordingly, during the ExecutiveEmployee’s employment hereunder and for a period of twelve (12) months thereafter following (x) a termination of the Employee other than for Cause (y) a termination by the Employee for Good Reason or (z) termination of the Employee’s employment as a result of the Company’s non-extension of the Employment Term as provided in Section 1 hereof (each a “Restricted PeriodQualifying Termination”), the Executive Employee agrees that the Executive Employee will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or other entity, in whatever form, engaged in a Competitive Business 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment TermUnited States. Notwithstanding the foregoing, nothing herein shall prohibit the Executive Employee from being a passive owner of not more than one two percent (12%) of the equity securities of a publicly traded corporation engaged in a business that is in competition with the Company or any of its subsidiaries or affiliatesCompetitive Business, so long as the Executive Employee has no active participation in the business of such corporation. For purposes hereof, the term “Competitive Business” shall mean any net leased real estate investment trust and the term “Employee’s Termination” shall mean the date the Employee ceases to be employed by the Company for whatever reason, whether voluntarily or involuntarily.
Appears in 2 contracts
Samples: Employment Agreement (Spirit Realty Capital, Inc.), Employment Agreement (Spirit Realty Capital, Inc.)
Noncompetition. The (a) In view of Executive's importance to the Firm, Executive acknowledges that (i) the Executive performs services of a unique nature for the Company that are irreplaceable, and hereby agrees that the Firm would likely suffer significant harm from Executive’s performance 's competing with the Firm during Executive's Employment Period (as defined in the employment agreement between Executive and GS Inc., dated the date hereof (the "Employment Agreement")) and for some period of such services to a competing business will result in irreparable harm time thereafter or, if Executive has separated from the Firm on or prior 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 date of its affiliates, (iii) in the course consummation 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 initial public offering of the Executive’s employmentcommon stock of GS Inc. (the "IPO Date"), for some time after the IPO Date. Accordingly, during the Executive’s employment hereunder and for a period of twelve (12) months thereafter (the “Restricted Period”), the Executive hereby agrees that the Executive will not, directly without the written consent of GS Inc., during the Employment Period, if any, and for twelve months following the Date of Termination:
(1) form, or indirectlyacquire a 5% or greater equity ownership, ownvoting or profit participation interest in, manageany Competitive Enterprise; or
(2) associate (including, operatebut not limited to, control, be employed by (whether association as an officer, employee, partner, director, consultant, independent contractor agent or otherwiseadvisor) with any Competitive Enterprise and in connection with such association engage in, and whether or not for compensationdirectly or indirectly manage or supervise personnel engaged in, any activity
(i) which is similar or render services substantially related to any person, firm, corporation or other entityactivity in which Executive was engaged, in whatever formwhole or in part, engaged at the Firm,
(ii) for which Executive had direct or indirect managerial or supervisory responsibility at the Firm, or
(iii) which calls for the application of the same or similar specialized knowledge or skills as those utilized by Executive in Executive's activities with the business Firm, (By way of international example only, this provision precludes an "advisory" investment banker from joining a leveraged-buyout firm or domestic maritime transport of petroleum a research analyst from becoming a proprietary trader or petroleum-based products, including but not limited to crude oil and refined petroleum products (the “Business”)joining a hedge fund, in each case without the written consent of GS Inc.)
(b) For purposes of this Agreement, a "Competitive Enterprise" is a business enterprise that (1) engages in any locale of activity, or (2) owns or controls a significant interest in any country (and includingentity that engages in any activity, for the avoidance of doubtthat, shipping through international waters) in either case, competes anywhere with any activity in which the Firm is engaged. The activities covered by the previous sentence include, without limitation, financial services such as investment banking, public or from which the Company conducts business private finance, lending, financial advisory services, private investing (for anyone other than Executive and members of Executive's family), merchant banking, asset or hedge fund management, insurance or reinsurance underwriting or brokerage, property management, or securities, futures, commodities, energy, derivatives or currency brokerage, sales, lending, custody, clearance, settlement or trading.
(c) For purposes of this Agreement, "Date of Termination" means Executive's Date of Termination (as of the end of defined in the Employment Term. Notwithstanding the foregoingAgreement) or, nothing herein shall prohibit if the Executive from being is not a passive owner of not more than one percent (1%) of party to an Employment Agreement, the equity securities of a publicly traded corporation engaged in a business that is in competition with the Company or any of its subsidiaries or affiliates, so long as the Executive has no active participation in the business of such corporationIPO Date.
Appears in 2 contracts
Samples: Noncompetition Agreement (Goldman Sachs Group Inc), Noncompetition Agreement (Goldman Sachs Group Inc)
Noncompetition. The Executive acknowledges (a) Employee agrees that (i) during the Executive performs services Term of a unique nature for the Company that are irreplaceablethis Agreement and, and that the Executive’s performance upon termination 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 ExecutiveEmployee’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 for a period of twelve three (123) months thereafter years thereafter, he shall not:
(i) Call upon, solicit, divert, take away or attempt to call upon, solicit, divert or take away any existing (or those existing within one (1) year prior to that time) customers, suppliers, businesses, or accounts of the Company (including the subsidiaries thereof) in connection with any business substantially similar to the Business;
(ii) call upon, hire, attempt to hire, contact or solicit with respect to hiring (for Employee or on behalf of another) any person who is, at that time, or who has been within one (1) year prior to that time, an employee of the Company (including the subsidiaries thereof) in a managerial or sales capacity, provided that Employee shall be permitted to call upon and hire any member of his immediate family;
(iii) Lend credit, money or reputation for the purpose of establishing or operating a business substantially similar to the Business in the territory defined as 100 miles in and around the Company’s and its affiliates’ operations (the “Restricted PeriodTerritory”), ;
(iv) Do any act that Employee knew or reasonably should have known might directly injure the Executive agrees that the Executive will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or 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 Company in any locale material respect or that might divert customers, suppliers or employees from the Business; and
(v) Without limiting the generality of the foregoing provisions, conduct a business substantially similar to the Business under the name “F.Y.I. Incorporated” or any country (other trade names, trademarks or service marks heretofore used by the Company or its affiliates. In the course of Employee’s employment with the Company, Employee will become exposed to certain of the Company’s confidential information and includingbusiness relationships, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Termabove covenants are designed to protect. Notwithstanding the foregoing, nothing herein shall prohibit the Executive The covenants in subsections (i) through (v) are intended to restrict Employee from being a passive owner of not more than one percent (1%) of the equity securities of a publicly traded corporation engaged competing in a business that is in competition any manner with the Company or any of its subsidiaries or affiliates, so long as the Executive has no active participation Business in the business activities that have heretofore been carried on by the Company or its affiliates. The obligations set forth in subsections (i) through (v) above shall apply to actions by Employee, through any form of ownership, and whether as principal, officer, director, agent, employee, employer, consultant, stockholder 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 Employee from being the holder of up to 5.0% in the aggregate of any class of securities of any corporation engaged in the activities described in subsection (i) through (v) above, provided that such corporationsecurities are listed on a national securities exchange or reported on the Nasdaq National Market.
Appears in 2 contracts
Samples: Employment Agreement (Fyi Inc), Employment Agreement (Fyi Inc)
Noncompetition. The Executive acknowledges that (ia) In consideration of this Agreement, including the Executive performs services of a unique nature for the Company that are 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 affiliates, (iii) in the course addition of the Executive’s Retention Bonus described in Section 2, Employee represents and agrees that during his 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 for a period of twelve one (121) months thereafter (year from and after the “Restricted Period”)termination of his employment for any reason, the Executive agrees that the Executive Employee will not, directly or indirectly, ownalone or in any capacity with another legal entity, manage(i) engage in any activity that directly competes in any material respect with DBI, operateincluding specifically, controlbut without limitation, the manufacture, sale, marketing or distribution of clothespins, toothpicks, matches, firestarters, wooden crafts, plastic cutlery, candles or aromatherapy products; (ii) contact or in any way interfere or attempt to interfere with the relationship of DBI with any current or potential customers or any current vendors of DBI; (iii) employ or attempt to employ, on behalf of Employee or any other person or entity, any employee of DBI (other than a former employee thereof after such employee has terminated employment with DBI).
(b) Employee acknowledges that DBI markets products throughout the United States and Canada (the "Territory") and that DBI would be employed by (whether as an employeeharmed if Employee conducted any of the activities described in this Section 6 anywhere in the Territory. Therefore, consultant, independent contractor or otherwiseEmployee agrees that the covenants contained in this Section 6 shall apply to all portions of, and whether or not throughout, the Territory.
(c) Employee acknowledges that the duration and scope of the covenants contained in this Section 6, as well as the Territory to which such covenants apply are reasonable under the circumstances. Employee further acknowledges that he understands that his willingness to enter into the covenants contained in Section 5 and 6 were inducements for compensationDBI to enter into this Agreement, and that the consideration he is receiving hereunder is fair and reasonable.
(d) or render services Employee acknowledges that if he fails to fulfill his obligations under Sections 5 and 6, the damages to DBI would be very difficult to determine. Therefore, in addition to any person, firm, corporation other rights or other entityremedies available to DBI at law, in whatever formequity, engaged in or by statute, Employee hereby consents to 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as specific enforcement of the end provisions of Sections 5 and 6 by DBI through an injunction or restraining order issued by the Employment Termappropriate court.
(e) If for any reason any court of competent jurisdiction determines any provision of Sections 5 and 6 to be unenforceable as written, the parties expressly grant the court the authority to modify those provisions and to enforce those provisions to the maximum extent possible. Notwithstanding In furtherance and not in limitation of the foregoing, nothing herein should the duration or geographic extent of, or business activities covered by, any provision of Sections 5 and 6 be in excess of that which is valid and enforceable under applicable law, then such provision shall prohibit be construed to cover only that duration, extent or activities which are validly and enforceably covered. Employee acknowledges the Executive from being a passive owner of not more than one percent (1%) uncertainty of the equity securities law in this respect and expressly stipulates that this Section 6 be given the construction which renders its provisions valid and enforceable to the maximum extent (not exceeding its expressed terms) possible under applicable laws.
(f) Employee may make a written request for a modification of a publicly traded corporation engaged his obligations under this Section 6 if, in a his opinion, his intended activities will not adversely affect DBI's legitimate interests. DBI will consider such written request, determine in its sole discretion whether the request is adverse to its legitimate business that is interests, and notify Employee in competition with the Company writing of any approved modification to Employee's obligations under this Section 6 or any its rejection of its subsidiaries or affiliates, so long as the Executive has no active participation in the business of such corporationEmployee's request.
Appears in 2 contracts
Samples: Employment Agreement (Diamond Brands Operating Corp), Employment Agreement (Diamond Brands Inc)
Noncompetition. The Executive acknowledges that (i) the Executive performs services of a unique nature for the Company that are irreplaceable, and that the Executive’s performance of such services Except as otherwise consented to a competing business will result or approved 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 writing by a competitorBuyer, 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 Shareholder agrees that for a period of twelve (12) 60 months thereafter (from the “Restricted Period”)date hereof, the Executive agrees that the Executive such Shareholder will not, directly or indirectly, own, manage, operate, control, be employed by (whether acting alone or as a member of a partnership or as an officer, director, employee, consultant, independent contractor representative, holder of, or otherwiseinvestor in as much as 5% of any security of any class of any corporation or other business entity (i) engage in competition with the well servicing business or businesses conducted by the Company, on the date hereof, or in any service business the services of which are provided and whether marketed by the Company, on the date hereof in any area of the state of the United States, or not for compensationany foreign country in which the Company, transacts business on the date hereof; (ii) request any present customers or render services suppliers of the Company to curtail or cancel their business with Buyer or any affiliate of Buyer; (iii) disclose to any person, firmfirm or corporation any trade, technical or technological secrets of the Company, Buyer or any affiliate of Buyer or any details of their organization or business affairs or (iv) induce or actively attempt to influence any employee of the Company, Buyer or any affiliate of Buyer to terminate his employment; provided, however, that the Shareholder shall be able to buy, sell, build and overhaul well servicing rigs, and to work on any rig on Shareholder's own production. Shareholder agrees that if either the length of time or geographical area set forth in this Section 3.1 is deemed too restrictive in any court proceeding, the court may reduce such restrictions to those which it deems reasonable under the circumstances. The obligations expressed in this Section 3.1 are in addition to any other obligations that the Shareholder may have under the laws of the states in which he does business requiring an employee of a business or a shareholder who sells his stock in a corporation (including a disposition in a merger) to limit his activities so that the goodwill and business relations of his employer and of the corporation whose stock he has sold (and any successor corporation) will not be materially impaired. The Shareholder further agrees and acknowledges that the Company, Buyer and its affiliates do not have any adequate remedy at law for the breach or other entitythreatened breach by such Shareholder of this covenant, and agree that the Company, Buyer or any affiliate of Buyer may, in whatever formaddition to the other remedies which may be available to it hereunder, engaged file a suit in equity to enjoin such Shareholder from such breach or threatened breach. If any provisions of this Section 3.1 are held to be invalid or against public policy, the business of international or domestic maritime transport of petroleum or petroleum-based products, including but remaining provisions shall not limited to crude oil be affected thereby. The Shareholder acknowledges that the covenants set forth in this Section 3.1 are being executed and refined petroleum products (the “Business”), delivered by such Shareholder in each case in any locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as consideration of the end covenants of the Employment Term. Notwithstanding the foregoingBuyer contained in this Agreement, nothing herein shall prohibit the Executive from being a passive owner and for other good and valuable consideration, receipt of not more than one percent (1%) of the equity securities of a publicly traded corporation engaged in a business that which is in competition with the Company or any of its subsidiaries or affiliates, so long as the Executive has no active participation in the business of such corporationhereby acknowledged.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Key Energy Group Inc), Stock Purchase Agreement (Key Energy Group Inc)
Noncompetition. The Executive acknowledges that (ia) During the Executive performs services of a unique nature for Employment Period, the Company that are irreplaceableEmployee agrees not to compete in any manner, and that the Executive’s performance of such services to a competing business will result in irreparable harm to either directly or indirectly, with the Company, (ii) or to assist any other person or entity to compete with the Executive has had and will continue to have access to Confidential InformationCompany. Further, which, if disclosed, would unfairly and inappropriately assist in competition against the Company or any of its affiliates, (iii) in the course while an employee of the Executive’s employment by a competitorCompany, the Executive would inevitably use Employee agrees not to engage in any other employment or disclose such Confidential Information, (iv) business enterprise without 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 written permission of the Executive’s employment. AccordinglyChief Executive Officer of the Company.
(b) After the termination, during for any reason, of his employment with the Executive’s employment hereunder and Company, the Employee agrees that for a period of twelve one (121) months thereafter (the “Restricted Period”)year following such termination, the Executive Employee will not compete with the Company by developing, marketing, or assisting others to develop or market a product or service which is competitive with the products or services of the Company then existing or planned for the future, which the Employee learns of or develops while an the Employee of the Company. The Employee further agrees that for the Executive same period following such termination, for any reason, the Employee will notnot accept employment from or have any other professional relationship with any entity which is competitive with the products or services of the Company then existing or which were known by the Employee to be planned for the future. The foregoing restrictions shall apply in all geographical areas where the Employee performed services for the Company prior to such termination, and at all other places where the Company does business and/or did business during the term of his employment, and at all places where, during his employment with the Company, the Company had plans or reasonable expectations to do business in the future.
(c) During the Employment Period and for one (1) year following the termination, for any reason, of his employment, the Employee agrees either on his behalf or on behalf of any other person or entity, directly or indirectly, ownnot (i) to hire, managesolicit, operateor encourage to leave the employ of the Company any person who is then an employee of the Company, controlor (ii) to solicit, be employed by (whether as an employeeentice away or divert any person or entity who is then a client of the Company and who was a client of the Company at the time of employment. The Employee agrees that customer or client lists, consultant, independent contractor or otherwise, business contracts and whether or not for compensation) or render services related items are the property of the Company. The restrictions described herein shall apply to the activities of the Employee in any person, firm, corporation state or other entity, jurisdiction in whatever form, which the Company engaged in business during the term of employment. Furthermore, for one (1) year following the termination, for any reason, of his employment (except following termination of the employment of the Employee pursuant to the Company's termination of business and liquidation of assets), the Employee agrees that he will not (i) solicit or accept work or provide services which is direct follow-up to work or services under contract performed or being performed by the Company or being actively solicited by the Company at the time of termination of the employment of the Employee, or (ii) directly or indirectly recruit the employees of the Company (or any successor thereto). The restrictions against competition set forth in this Paragraph 12 are considered by the parties to be reasonable for the purposes of protecting the business of international the Company. However, if any such restriction is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or domestic maritime transport over too great a range of petroleum activities or petroleum-based productsin too broad a geographic area, including but not limited it shall be interpreted to crude oil and refined petroleum products (extend only over the “Business”)maximum period of time, in each case in any locale range of any country (and including, for the avoidance of doubt, shipping through international waters) in activities or geographic area as to which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 subsidiaries or affiliates, so long as the Executive has no active participation in the business of such corporationit may be enforceable.
Appears in 2 contracts
Samples: Employment Agreement (C P Clare Corp), Employment Agreement (C P Clare Corp)
Noncompetition. The Executive acknowledges that (i) Executive agrees that when employed with the Executive performs services of a unique nature for the Company that are 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 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, Employer during the Executive’s employment hereunder Employment Period and for a any further period of twelve (12) in which Executive is employed with the Employer and for 12 months thereafter after Executive is no longer employed by the Employer for any reason (the “Restricted Period”), the Executive agrees that the except as set forth in Section 5(a)(ii), Executive will not, not directly or indirectly, ownas a principal, manageagent, operateemployee, controlemployer, be employed by (whether as an employeeinvestor, director, consultant, independent contractor co-partner or otherwisein any other individual or representative capacity whatsoever engage in a Competitive Business anywhere in the Market Area (as such terms are defined below) by (i) owning, and whether managing or not controlling a Competitive Business, or (ii) performing competitive duties that are the same as or substantially similar to those which Executive performed on behalf of the Employer or any of its Affiliates during the last 24 months of Executive’s employment by the Employer for compensation) or render services to on behalf of any person, firm, corporation or other entity, in whatever form, Person 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 “a Competitive Business”), in each case in any locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from being a passive owner of may purchase or otherwise acquire up to (but not more than one percent than) 1% of any class of securities of any business enterprise (1%but without otherwise participating in the activities of such enterprise) that engages in a Competitive Business in the Market Area and whose securities are listed on any national securities exchange or have been registered under Section 12 of the equity securities Exchange Act.
(ii) If the Employer terminates Executive for Cause, the covenants of Section 5(a)(i) shall not apply unless the Employer (A) provides written notice to Executive, within 15 days after Executive’s termination date, that such covenants shall apply for a publicly traded corporation engaged period specified in a business the notice, which period shall not exceed 12 months following Executive’s termination date (the period specified, the “Applicable Period”) and (B) agrees to continue to pay the Base Salary on regular payroll dates through the end of the Applicable Period. Payment of the Base Salary will cease, however, in the event the Employer determines that is in competition with the Company or any of its subsidiaries or affiliates, so long as the Executive has no active participation breached the covenants set forth in Section 5 during the business Applicable Period and files an action to enforce the covenants or gives Executive a notice that a claim is being initiated under Section 6 of this Agreement. Further, in such corporationa proceeding, the Employer shall seek, and Executive shall be liable to return to the Employer, any payments made to Executive under this Section 5(a)(ii) dating back to the date of the original breach. For clarity, the covenants of Section 5(a) shall continue to apply during the remainder of the Applicable Period (and the covenants of Section 5(b) and 5(c) shall continue to apply during the remainder of the Restricted Period).
Appears in 2 contracts
Samples: Employment Agreement (Blue Ridge Bankshares, Inc.), Employment Agreement (Blue Ridge Bankshares, Inc.)
Noncompetition. The Executive Practice hereby recognizes and acknowledges that (i) -------------- Business Manager will incur substantial costs in providing the Executive performs equipment, support services, personnel, management, administration, and other items and services that are the subject matter of a unique nature 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 Company that are irreplaceableprotection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the Executive’s following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of such 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 competing business will result in irreparable harm to medical office, clinic or other health care facility anywhere within the Company, (ii) Practice Territory. During the Executive has had Term of this Management Services Agreement and will continue to have access to Confidential Information, which, if disclosed, would unfairly and inappropriately assist in competition against except for the Company or any of its affiliates, (iii) in the course operation of the Executive’s employment 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 competitorDispensary Business at any other office or facility.
(b) Except as specifically agreed to by Business Manager in writing, the Executive would inevitably use or disclose such Confidential Information, (iv) the Company Practice commits 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, agrees that during the Executive’s employment hereunder Term of this Management Services Agreement and for a period of twelve five (125) months thereafter (years from the “Restricted Period”)termination date of this Management Services Agreement, except in the Executive agrees that the Executive will notevent Practice terminates this Management Services Agreement for cause pursuant to Section 7.2(b) hereof, Practice shall not directly or indirectly, ownindirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity), manage, operate, control, or otherwise be employed by associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (whether as an employeei) having to do with the provision, consultantdistribution, independent contractor promotion or otherwise, and whether advertising of any type of management or not for compensationadministrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or render services to any person, firm, corporation or other entity, in whatever form, engaged product in the business of international or domestic maritime transport of petroleum or petroleum-based products, including but not limited Practice Territory to crude oil and refined petroleum products (the “Business”), in each case in any locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Termthird parties similar to those offered by Business Manager to Practice. Notwithstanding the foregoingabove restriction, nothing herein shall prohibit 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 Practice or any of its subsidiaries holders from providing management and administrative services to its or affiliatestheir 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, so long as the Executive has no active participation except in the business 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 corporationagreement 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. The Executive Practice hereby recognizes and acknowledges that (i) -------------- Business Manager will incur substantial costs in providing the Executive performs equipment, support services, personnel, management, administration, and other items and services that are the subject matter of a unique nature 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 Company that are irreplaceableprotection of Business Manager, and that Business Manager would not have entered into this Management Services Agreement without the Executive’s following covenants:
(a) During the Term of this Management Services Agreement and except for the performance of such 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 competing business will result in irreparable harm to medical office, clinic or other health care facility anywhere. During the Company, (ii) Term of this Management Services Agreement and except for 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 operation of the Executive’s employment 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 competitorNon- Ophthalmic Business at a medical office, the Executive would inevitably use clinic or disclose such Confidential Informationother health care facility.
(b) Except as specifically agreed to by Business Manager in writing, (iv) the Company Practice commits 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, agrees that during the Executive’s employment hereunder Term of this Management Services Agreement and for a period of twelve five (125) months thereafter 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 (the “Restricted Period”in which event this Section 5.7 shall not apply), the Executive agrees that the Executive will not, Practice shall not directly or indirectly, ownindirectly own (excluding ownership of less five percent (5%) of the equity of any publicly traded entity), manage, operate, control, or otherwise be employed by associated with, lend funds to, lend its name to, or maintain any interest whatsoever in any enterprise (whether as an employeei) having to do with the provision, consultantdistribution, independent contractor promotion or otherwise, and whether advertising of any type of management or not for compensationadministrative services or products to third parties in competition with Business Manager; and/or (ii) offering any type of service or render services to any person, firm, corporation or other entity, in whatever form, engaged product in the business of international or domestic maritime transport of petroleum or petroleum-based products, including but not limited Practice Territory to crude oil and refined petroleum products (the “Business”), in each case in any locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Termthird parties similar to those offered by Business Manager to Practice. Notwithstanding the foregoingabove restriction, nothing herein shall prohibit 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 Practice or any of its subsidiaries holders from providing management and administrative services to its or affiliatestheir 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, so long as the Executive has no active participation except in the business 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 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 Employees and Optometrists in the form of Exhibit 5.2A, pursuant to which ------------ the employees agree not to compete with Practice with the Practice Territory for one (1) year after termination of the Employment Agreement, except in the event Physician terminates such corporationagreement 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. The Executive acknowledges and agrees that (i) the Executive performs services of in consideration and as a unique nature for the Company that are 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 affiliates, (iii) in the course condition 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 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 has had acknowledges and will continue to have access to these customers, (v) the Executive has received agrees is fair and will receive specialized training reasonable consideration that is independent 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 continuation of the Executive’s employment. Accordingly, during the Executive’s employment hereunder and for a period of twelve (12) months thereafter (the “Restricted Period”), the Executive agrees that Period the Executive will not, not directly or indirectly, own, manage, operate, control, be employed by (whether as an employeeowner, partner, shareholder, director, manager, consultant, independent contractor agent, employee, co-venturer or otherwise, and whether engage, participate or not for compensation) or render services to invest in any personCompeting Business anywhere in the world. For purposes hereof, firm, corporation or other entity, in whatever form, the term “Competing Business” shall mean any entity engaged in the business discovery, development or commercialization 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 locale of any country (and including, gene editing technology for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Termhuman therapeutics. Notwithstanding the foregoing, nothing herein contained hereinabove or hereinbelow shall be deemed to prohibit the Executive from being a passive owner (i) acquiring, solely as an investment, shares of not more than one percent capital stock (1%or other interests) of the any corporation (or other entity) not exceeding 2% of such corporation’s (or other entity’s) then outstanding shares of capital stock (or equity securities interest), or (ii) working for a line of business, division or unit of a publicly traded corporation engaged in a business larger entity that is in competition competes with the Company or any of its subsidiaries or affiliates, so as long as the Executive’s activities for such line of business, division or unit do not involve work by the Executive has on matters that are directly competitive with the 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 Section 7(c). If Section 7(c) is enforced during the post-employment portion of the Restricted Period, the Company shall pay the Executive at the rate of 50% of the highest annualized base salary paid to the Executive within the two 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 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 Section 7(c). In no active participation event will Garden Leave Pay be duplicative of other pay and the Executive agrees that any Garden Leave Pay received pursuant to this Section 7(c) shall reduce (and shall not be in addition to) any other pay that the business Executive may be entitled to receive during the post-employment portion of such corporationthe Restricted Period. The Executive acknowledges having been advised by the Company of the right to consult with counsel regarding the noncompetition restrictions contained in this Section 7(c) prior to executing this Agreement.
Appears in 2 contracts
Samples: Employment Agreement (CRISPR Therapeutics AG), Employment Agreement (CRISPR Therapeutics AG)
Noncompetition. The Executive acknowledges that (i) the Executive performs services of a unique nature for the Company that are 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 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 for a period of eighteen (18) months thereafter provided, however, that in the event that the Executive’s is receiving the enhanced benefits pursuant to Section 7(c)(ii) due to the Executive’s termination in connection with a Change in Control, twelve (12) months thereafter (the “Restricted Period”), the Executive agrees that the Executive will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 subsidiaries or affiliates, so long as the Executive has no active participation in the business of such corporation.
Appears in 2 contracts
Samples: Employment Agreement (Gener8 Maritime, Inc.), Employment Agreement (General Maritime Corp / MI)
Noncompetition. The (a) All payments and benefits to Executive acknowledges that under this Agreement shall be subject to Executive's compliance with Sections 13(b), 13(c) and 13(d).
(ib) the Executive performs services of a unique nature for shall, upon reasonable notice, furnish such information and assistance to the Company that are 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 as may reasonably be required by the Company in connection with any litigation in which it or any of its affiliatessubsidiaries or affiliates is, or may become, a party other than litigation in which Executive or his family is a party; provided that such information and assistance does not materially interfere with the Executive's subsequent employment or self-employment.
(iiic) in Executive recognizes and acknowledges that the course knowledge of the Executive’s employment by a competitor, the Executive would inevitably use or disclose such Confidential Information, (iv) business activities and plans for business activities of the Company and its affiliates have substantial relationships with their customers thereof, as it may exist from time to time, is a valuable, special 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 unique asset of the Executive’s employmentbusiness of the Company. Accordingly, during the Executive’s employment hereunder and for a period of twelve (12) months thereafter (the “Restricted Period”), the Executive agrees that the Executive will not, directly during or indirectlyafter the term of his employment, owndisclose any knowledge of the past, managepresent, operateplanned or considered business activities of the Company or affiliates thereof to any person, controlfirm, corporation, or other entity for any reason or purpose whatsoever (except for such disclosure as may be employed by required to be provided to the Office of the Comptroller of the Currency (whether as an employee"OCC"), consultantthe Federal Deposit Insurance Corporation ("FDIC"), independent contractor or otherwiseother bank regulatory agency with jurisdiction over the Bank or Executive). Notwithstanding the foregoing, Executive may disclose any knowledge of banking, financial and/or economic principles, concepts or ideas which are not solely and exclusively derived from the business plans and activities of the Company, and whether Executive may disclose any information regarding the Company which is otherwise publicly available or not for compensation) which Executive is otherwise legally required to disclose. In the event of a breach or render threatened breach by Executive of the provisions of this Section 13, the Company will be entitled to an injunction restraining Executive from disclosing, in whole or in part, the knowledge of the past, present, planned or considered business activities of the Company or affiliates thereof, or from rendering any services to any person, firm, corporation or corporation, other entityentity to whom such knowledge, in whatever formwhole or in part, engaged in has been disclosed or is threatened to be disclosed. Nothing herein will be construed as prohibiting the business of international Company from pursuing any other remedies available to the Company for such breach or domestic maritime transport of petroleum or petroleum-based productsthreatened breach, including but not limited the recovery of damages from Executive.
(d) Subject to crude oil and refined petroleum products (the “Business”Section 13(e), in each case upon any termination of Executive's employment hereunder pursuant to Section 6 or 7 of this Agreement, Executive agrees not to compete with the Company for a period of one (1) year following such termination in any locale of any country (and includingcity, for the avoidance of doubt, shipping through international waters) town or county in which or from which the Company conducts business or the Bank has an office or has filed an application for regulatory approval to establish an office, determined as of the end effective date of such termination, except as agreed to pursuant to a resolution duly adopted by the Board. Executive agrees that during such period and within said cities, towns and counties, Executive shall not work for or advise, consult or otherwise serve with, directly or indirectly, any entity whose business materially competes with the depository, lending or other business activities of the Employment TermCompany. Notwithstanding The parties hereto, recognizing that irreparable injury will result to the foregoingCompany, nothing herein shall prohibit its business and property in the event of Executive's breach of this Section 13, agree that in the event of any such breach by the Executive, the Company will be entitled, in addition to any other remedies and damages available, to an injunction to restrain the violation hereof by Executive, Executive's partners, agents, servants, employers, employees and all persons acting for or with Executive. Executive from being a passive owner of not more than one percent (1%) of the equity securities of a publicly traded corporation engaged represents and admits that Executive's experience and capabilities are such that Executive can obtain employment in a business engaged in other lines and/or of a different nature than the Company, and that is in competition with the enforcement of a remedy by way of injunction will not prevent Executive from earning a livelihood. Nothing herein will be construed as prohibiting the Company from pursuing any other remedies available to it for such breach or threatened breach, including the recovery of damages from Executive.
(e) Notwithstanding any other provision of its subsidiaries or affiliatesthis Agreement, so long as the Executive has no active participation parties understand, acknowledge and agree that the provisions of Section 13(d) shall not apply in the business event of Executive's termination of employment if: (i) Executive is not entitled to receive severance benefits under any circumstances or determines within ninety (90) days of such corporationtermination to waive any such severance payments (and repays any severance benefits he has already received), except in the case of termination for Just Cause; (ii) such termination follows a Change in Control; (iii) such termination constitutes an involuntary termination not for Just Cause; or (iv) such termination constitutes a resignation for Good Reason.
Appears in 1 contract
Noncompetition. The Executive acknowledges that Director hereby agrees that, for the longer of (i) three (3) years following the Executive performs services of a unique nature for the Company that are irreplaceable, and that the Executive’s performance of such services to a competing business will result in irreparable harm to the Company, Effective Time or (ii) the Executive has had and will continue to have access to Confidential Informationone (1) year following Director’s affiliation with Buyer or SNB as a director, whichemployee, if disclosedor consultant (whichever period is longer), would unfairly and inappropriately assist in competition Director shall not Compete (as defined herein) against the Company Buyer, SNB, or any of its affiliates, (iii) their Affiliated Companies in the course Restricted Area without the prior written consent of Buyer’s Chief Executive Officer, which consent may be withheld at the Executivesole discretion of Buyer’s employment by a competitorChief Executive Officer; provided, the however, Buyer’s Chief 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 Officer shall be deemed to have access provided prior written consent to these customers, the activities of Director described in Schedule I attached hereto and such activities shall not (v) as 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, date hereof or during the Executiveterm of this Agreement) be deemed to be a breach of this Agreement. For purposes of this Agreement, “Compete” means to engage or participate in Business Activities (or to prepare to engage or participate in Business Activities) on Director’s employment hereunder and own behalf, or with, for a period or on behalf of twelve (12i) months thereafter (the “Restricted Period”), the Executive agrees that the Executive will not, directly or indirectly, own, manage, operate, control, be employed by (whether any other financial institution as an employeeofficer, director, manager, owner, partner, joint venture, consultant, independent contractor contractor, employee, or otherwiseshareholder of, or (ii) any other Person, business, or enterprise. For purposes of this Agreement, “Business Activities” shall be any business activities conducted by Buyer, Seller, SNB, or any of their Affiliated Companies, which consist of commercial or consumer loans and extensions of credit, letters of credit, commercial and consumer deposits and deposit accounts, securities repurchase agreements and sweep accounts, cash management services, money transfer and bxxx payment services, internet or electronic banking, automated teller machines, IXX and retirement accounts, commercial or consumer mortgage loans, and whether commercial or not for compensationconsumer home equity lines of credit. For purposes of this Agreement, the “Restricted Area” means each and any county where the Buyer, SNB, Bank, or any of their Affiliated Companies (i) operates a banking office, or render services to any person(ii) has operated a banking office within the preceding 12 months, firm, corporation or other entity, in whatever form, (iii) is actively engaged in the business of international providing Business Activities to customers. Nothing in this Section 2(d) shall prohibit Director from acquiring 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 locale of any country (and includingholding, for the avoidance of doubtinvestment purposes only, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from being a passive owner of not more less than one five percent (15%) of the equity outstanding securities of a publicly traded corporation engaged in a any company or business that is in competition organization which may compete directly or indirectly with the Company Seller, Buyer, SNB, or any of its subsidiaries their Affiliated Companies. Nothing in this Agreement shall prohibit a Director or affiliates, so long as the Executive has no active participation in the business any of such corporationDirector’s Affiliated Companies from continuing to hold outstanding securities of an entity that engages in Business Activities; provided that such securities were held by the Director or any of such Director’s Affiliated Company as of the date of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Seacoast Banking Corp of Florida)
Noncompetition. The Executive acknowledges that (i) during his employment with the Executive performs services of a unique nature for Companies, he will become familiar with trade secrets and other Confidential Information concerning the Company that are irreplaceableCompanies, their Subsidiaries and their respective predecessors, and that the Executive’s performance his services will be of such services to a competing business will result in irreparable harm special, unique and extraordinary value 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 competitorCompanies. In addition, 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, hereby agrees that at any time during the Executive’s employment hereunder Employment Period, and for a period ending two (2) years after the Date of Termination (if such termination is for Cause or as a result of the Executive's resignation or leaving employment not for Good Reason) (the "Noncompetition Period"), he will not directly or indirectly own, manage, control, participate in, consult with, render services for or in any manner engage in any business competing with the businesses of the Companies or their Subsidiaries as such businesses exist or are in process or being planned as of the Date of Termination, within any geographical area in which the Companies or their Subsidiaries engage or plan to engage in such businesses. Notwithstanding the foregoing, the Noncompetition Period shall be twelve (12) months thereafter (following the “Restricted Date of Termination if such termination is by the Companies without Cause, by the Executive for Good Reason or due to the Executive giving written notice pursuant to Section 5.01 of his intention not to extend the Employment Period”); provided however, that in such circumstances, the Executive agrees that Noncompetition Period may be extended up to a period of eighteen (18) months following the Date of Termination by the Company if it elects in writing to pay the Executive will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or 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 locale of any country (and including, his Base Salary for the avoidance additional six (6) month period, such amount to be payable in monthly installments over the additional six (6) month period. It shall not be considered a violation of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit this Section 9.01 for the Executive from being (i) to be a passive owner of not more than one percent (1%) 2% of the equity securities outstanding stock of any class of a corporation which is publicly traded corporation engaged in a business that is in competition with the Company or any of its subsidiaries or affiliatestraded, so long as the Executive has no active participation in the business of such corporation, or (ii) to serve as a nonemployee director of Fairfax Financial Holdings or its subsidiary Odyssey Reinsurance.
Appears in 1 contract
Noncompetition. The Executive acknowledges (a) Employee agrees that during the term of this Agreement and for one year after the Employment Termination Date, Employee shall not (i) directly or indirectly solicit any person (natural or otherwise) to purchase or sell any multifamily or retail real estate or a mortgage loan financing such type of real estate if the Executive performs services of person being solicited is or had been a unique nature for purchaser from or seller to the Company that are 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 type 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, property during the Executive’s employment hereunder and for a period of twelve (12) months thereafter prior to the Employment Termination Date or (ii) recruit or otherwise solicit or induce any person who is at the “Restricted Period”)time an employee or consultant of the Company to terminate his employment with, or otherwise cease his relationship with, the Executive agrees Company, or hire any such employee or consultant who has left the employ of the Company within one year after termination of such employee's employment or consultant's relationship with the Company, provided, however, that Employee may recruit any former employee of the Executive will notCompany whose employment has been terminated by the Company and, directly provided further, that if Employee has terminated his employment of his own volition, other than pursuant to Section 7 above, this restriction upon recruiting employees or indirectlyconsultants shall run for two (2) years after the Employment Termination Date.
(b) During any period that Employee is entitled to receive and is paid severance compensation in accordance with Section 5 or 7 hereof, own, manage, operate, control, be employed by (whether as if Employee shall become an employee, consultantofficer, independent contractor director, shareholder, principal, agent, partner or otherwise, and whether consultant or not for compensation) otherwise be engaged in or render services to any person, firm, corporation have a financial or other entityinterest in any business which competes with the Company, in whatever formor their respective subsidiaries or affiliates or providers under contract of property management or administrative services, engaged in equipment or facilities (which activity by the business of international or domestic maritime transport of petroleum or petroleum-based products, including but Employee is not limited to crude oil and refined petroleum products (the “Business”prohibited by this Agreement), in each case in any locale of base salary received from such activities shall be set off against any country (and including, for severance pay which he is entitled to receive from the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment TermCompany. Notwithstanding the foregoing, nothing herein shall prohibit Employee may make personal investments in the Executive from being a passive owner equity securities of any publicly traded company provided that any such investment does not more than exceed one percent (1%) of the equity market capitalization of the class of securities of a publicly traded corporation engaged the company in a business that which his investment is made.
(c) The restrictions against activities set forth in competition with Section 12(a) and (b) above are considered by the Company or any parties to be reasonable for the purposes of its subsidiaries or affiliates, so long as the Executive has no active participation in protecting the business of such corporationthe Company. If any restriction is found by a court of competent jurisdiction to be unenforceable because it extends for too long a period of time, over too broad a range of activities or in too large a geographic area, that restriction shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
Appears in 1 contract
Noncompetition. The Executive Provider acknowledges that (i) Service Company will incur substantial costs in providing the Executive performs equipment, support services, personnel, and other items and services of a unique nature for the Company that are irreplaceable, the subject matter of this agreement and that in the Executive’s performance process of such providing services to a competing business under this agreement, Provider will result in irreparable harm to the Company, (ii) the Executive has had and will continue to learn or have access to financial and other Confidential Information, which, Information of Service Company to which Provider would not otherwise be exposed. Provider also recognizes that the services to be provided by Service Company will be feasible only if disclosed, would unfairly Provider operates an active practice to which the dentists associated with Provider devote their full time 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 employmentattention. Accordingly, Provider further agrees as follows:
(a) During the Term, except for its obligations under this agreement, Provider shall not establish, operate, or provide Dental Care at any dental office, clinic or other dental care facility anywhere within the Practice Territory nor have an ownership interest, direct or indirect, in any entity, or participate in any joint venture, which operates any such office, clinic, or facility; and
(b) Except as specifically approved by Service Company in writing, during the Executive’s employment hereunder Term and for a period of twelve (12) months thereafter (five years immediately following the “Restricted Period”)date this agreement is terminated for any reason, the Executive agrees that the Executive will not, Provider shall not directly or indirectly, ownindirectly own (excluding ownership of less than five percent (5%) of the equity of any publicly traded entity), manage, operate, control, be employed by (whether as an employeelend funds to, consultantlend its name to, independent contractor or otherwise, and whether or not for compensation) or render services to maintain any person, firm, corporation or other interest in any entity, business, or enterprise which (i) provides, distributes, or promotes any type of management or administrative services or products to third parties in whatever form, engaged competition with Service Company in the business Practice Territory or (ii) offers any type of international service or domestic maritime transport of petroleum or petroleum-based products, including but not limited product to crude oil and refined petroleum products (third parties substantially similar to those offered by Service Company to Provider in the “Business”), in each case in any locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment TermPractice Territory. Notwithstanding the foregoingabove restriction, nothing herein shall prohibit 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 Provider or any of its subsidiaries shareholders from providing management and administrative services to its or affiliatestheir own dental practices after the termination of this agreement, so and nothing herein shall prohibit Provider or its shareholders from contracting with a third party manager to provide administrative or management services for its or their dental practices after termination of this agreement as long as such relationship complies with the Executive has no active participation in the business provisions of such corporationthis section.
Appears in 1 contract
Noncompetition. The Executive acknowledges that following noncompetition provisions shall apply:
(i) The Executive shall not, at any time during his employment with the Company or the twelve (12) month period commencing on the day immediately following the 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 the Company’s business 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 performs services shall promptly notify the Board (or its representative) in advance in writing (which shall include a description of a unique nature for the Company that are irreplaceableactivity) of his intention to engage in any activity which could reasonably be deemed to be subject to this noncompetition provision, and that the Board shall respond to the Executive in writing within 10 calendar days indicating its approval or objections to the Executive’s performance 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 such services to a competing his intended activity in advance, the Board shall retain all its rights of objections. Notwithstanding the preceding provisions of this subsection (a)(i), this subsection (a)(i) shall not be construed as preventing the Executive from investing his personal assets in any business will result in irreparable harm to that competes with the Company, in such form or manner as will not require any services on the part of the Executive in the operation of the affairs of the business in which such investments are made, but only if the Executive does not own or control five percent (5%) or more of any class of the outstanding stock, or of any profits interest or capital interest (as applicable), of such business.
(ii) The payments, benefits, and other entitlements under this Agreement are being made in consideration of, among other things, the Executive has had 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 will continue conditioned upon the Executive’s entering into the Release and Agreement referred to have access to Confidential Information, which, if disclosed, would unfairly and inappropriately assist in competition against the Company or any Section 6(e) of its affiliates, this Agreement.
(iii) in During the course of twenty-four (24) month period commencing on the day immediately following the date on which the Executive’s employment by a competitorterminates for any reason, the Executive would inevitably use shall not (A) influence 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 attempt 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 for a period of twelve (12) months thereafter (the “Restricted Period”), the Executive agrees that the Executive will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to influence any person, firm, corporation association, partnership, corporation, or 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which entity that is a contracting party with the Company conducts business as to terminate any written agreement with the Company, except to the extent the Executive is acting on behalf of the end Company in good faith, or (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 Employment Term. Notwithstanding the foregoingCompany in good faith; provided, however, that nothing herein shall prohibit the Executive from being a passive owner of generally advertising for personnel not more than one percent (1%) specifically targeting any executive or other personnel of the equity securities Company.
(iv) During the Term of a Employment and for the twenty-four (24) month period immediately following the date on which the Executive’s employment terminates for any reason, the Executive shall not publicly traded corporation engaged in a business that is in competition with criticize or disparage the Company, any affiliate of the Company, or any director, officer, executive, or agent of the Company or any of its subsidiaries or affiliatesrelated company, so long except as the Executive has no active participation in the business of such corporationmay be required by law.
Appears in 1 contract
Noncompetition. The Executive acknowledges that (i) In consideration of the Executive performs services of a unique nature mutual covenants -------------- provided for the Company that are irreplaceable, and that the Executive’s performance of such services to a competing business will result in irreparable harm herein to the Company, (ii) Sellers at 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. AccordinglyClosing, during the Executive’s employment hereunder period beginning on the Closing Date and for a period ending on the fifth anniversary of twelve (12) months thereafter the Closing Date (the “Restricted "Noncompete Period”"), none of the Executive agrees Sellers (and none of the beneficiaries of any ----------------- Seller that is a trust) (collectively, the Executive will not"Noncompeting Parties") shall engage, directly or indirectly-------------------- and each of the Sellers shall cause the Noncompeting Parties that are not themselves Sellers to not engage, own, manage, operate, control, be employed by (whether as an owner, operator, manager, employee, officer, director, consultant, independent contractor advisor, representative or otherwise, and whether ) directly or not for compensation) or render services to any person, firm, corporation or 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 indirectly in any locale business that the Company conducts or proposes to conduct as of the Closing Date in any country (and including, for the avoidance of doubt, shipping through international waters) geographic area in which or from which the Company conducts its business as of the end of the Employment Term. Notwithstanding the foregoingClosing Date, nothing herein shall prohibit 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 except as expressly permitted under any employment agreement with the Company or executed at the Closing as contemplated hereunder; provided that ownership of less than 2% of the outstanding stock of any publicly-traded corporation shall not be deemed to be engaging solely by reason thereof in any of its subsidiaries businesses. The parties hereto agree that the covenant set forth in this Section 10.11 is reasonable with respect to its duration, geographical area and scope. If the final judgment of a court of competent jurisdiction declares that any term or affiliatesprovision of this Section 10.11(a) is invalid or unenforceable, the Parties agree that the court making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration, or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so long as modified after the Executive has no active participation expiration of the time within which the judgment may be appealed. As further consideration for the obligations of the Sellers pursuant to this Section 10.11, the Purchaser shall pay to the Sellers $325,000 in cash on the business Closing Date, allocated among the Sellers in accordance with the Schedule of such corporation.Stockholders (the "Noncompete ------------------------ ---------- Payment"). -------
Appears in 1 contract
Samples: Stock Purchase Agreement (National Equipment Services Inc)
Noncompetition. The Executive acknowledges that (i) As an inducement to Purchaser to enter into this Agreement and to consummate the Executive performs services of a unique nature for the Company that are irreplaceabletransactions contemplated hereby, 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 neither Seller nor any of its affiliatesSeller's affiliates or successors, (iii) in the course of the Executive’s employment by a competitorshall, 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 for a period of twelve three (123) months thereafter (years following the “Restricted Period”)Closing Date, without the Executive agrees that the Executive will notprior written consent of Purchaser, directly or indirectly, invest in, own, manage, operate, controlcontrol or participate in the ownership, be employed by (whether management, operation or control of or serve as an employeea lender to, consultantany Competing Business within the Seller Business Service Area. For purposes of this Agreement, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or other entity, in whatever form, engaged in the term "Competing Business" means the business of international or domestic maritime transport of petroleum or petroleumowning and operating general acute care hospitals, and the term "Seller Business Service Area" means the area within a twenty-based products, including but not limited to crude oil and refined petroleum products five (the “Business”), in each case in any locale of any country (and including, for the avoidance of doubt, shipping through international waters25) in which or from which the Company conducts business as mile radius of the end of the Employment TermAcute Care Hospital. Notwithstanding the foregoing, nothing herein the following shall prohibit be excluded from the Executive from being foregoing provisions of this Section 4.13: (a) the general acute care hospital activities of Seller and Seller's affiliates as of the Closing Date (other than the activities of the Hospital) and (b) Seller's or any affiliate of Seller's acquisition and operation of a passive owner general acute care hospital within the Seller Business Service Area after the Closing Date so long as such hospital was acquired in a transaction in which the amount of not more consideration allocated to such hospital is less than one twenty percent (120%) of the equity securities total consideration necessary to consummate such transaction. Seller shall not actively solicit any of the Hospital Employees (other than the Retained Management Employees) to remain or become an employee of Seller between the Closing Date and the one year anniversary of the Closing Date; provided, however, that at any xxxx Xxxxxx may make a publicly traded corporation engaged general solicitation not directed specifically at Hospital Employees to recruit employees through any means and shall have the right to hire Hospital Employees who respond to such permitted solicitation efforts or seek such employment unsolicited by Seller. After the Effective Time, Seller shall not, and shall use its reasonable commercial efforts to cause its directors, officers, employees and agents to not, use for any purpose any confidential information which specifically relates to the Hospital, other than (i) as required for financial reporting purposes and (ii) as reasonably necessary in a business that is in competition connection with Seller's transition of the ownership and operation of the Hospital to Purchaser. Seller shall cause each of its affiliates to comply with the Company obligations imposed by this Section 4.13. In the event that the provisions contained in this Section 4.13 shall ever be deemed to exceed the time or geographic limits or any of its subsidiaries or affiliatesother limitations permitted by applicable law in any jurisdiction, so long as then such provisions shall be deemed reformed in such jurisdiction to the Executive has no active participation in the business of such corporationmaximum extent permitted by applicable law.
Appears in 1 contract
Noncompetition. The Executive Employee acknowledges that (i) that, in addition to his access to and possession of Confidential Information, during the Executive performs services of a unique nature for the Company that are irreplaceable, Term he will acquire valuable experience and special training regarding LifeCare’s business and that the Executiveknowledge, experience, and training he will acquire would enable him to injure LifeCare if he were to engage in any business that is competitive with the business of LifeCare. LifeCare agrees, in consideration of the Employee’s performance acceptance of such services the restrictions set forth in this Agreement, to a competing business will result in irreparable harm to grant the Company, (ii) the Executive has had and will continue to have Employee access to trade secret and other Confidential InformationInformation of LifeCare and to LifeCare’s valuable business relations and goodwill. Therefore, whichEmployee shall not, if disclosed, would unfairly at any time during the Term 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 for a period of twelve (12) consecutive months thereafter (immediately after the “Restricted Period”), the Executive agrees that the Executive will notTermination Date, directly or indirectly, own, manage, operate, control, be employed by indirectly (whether as an employee, employer, consultant, independent contractor agent, principal, partner, shareholder, officer, director, or otherwisemanager or in any other individual or representative capacity), and whether engage, invest, or not for compensationparticipate in (i) or render services to any person, firm, corporation or other entity, long-term acute care hospital business that is in whatever form, engaged in direct competition with 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 LifeCare within a thirty (the “Business”), in each case in any locale 30) mile radius of any country long-term acute care hospital facility operated by LifeCare or its affiliates, subsidiaries or operating entities, or (and includingii) within 30 miles of any other healthcare business operated by LifeCare at the time of Employee’s Termination Date. (Employee shall not be prohibited, for the avoidance of doubthowever, shipping through international waters) in which or from which the Company conducts business owning, as a passive investor, less than five percent of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from being a passive owner of not more than one percent (1%) of the equity securities of a publicly traded stock of any corporation engaged in a business competitive with that of LifeCare.) Employee represents that the enforcement of the restriction in this Section 7 would not be unduly burdensome to Employee and that, in order to induce LifeCare to enter into this Agreement (which contains various benefits to Employee and obligations of LifeCare with respect to Employee’s employment), Employee is willing and able to compete after the Termination Date in competition with other geographical areas not prohibited by this Section 7. The Parties agree that the Company or restrictions in this Section 7 regarding scope of activity, duration, and geographic area are reasonable; however, if any court should determine that any of its subsidiaries or affiliatesthose restrictions is unenforceable, so long as that restriction shall not thereby be terminated, but shall be deemed amended to the Executive has no active participation in the business of such corporationextent required to render it enforceable.
Appears in 1 contract
Noncompetition. The Executive acknowledges that (i) Subject to the Executive performs services of a unique nature for the Company that are irreplaceableClosing, and that as an inducement to Buyer to execute and deliver this Agreement and to consummate the Executive’s performance of such services transactions contemplated hereby, and to a competing business will result in irreparable harm to preserve the Companygoodwill associated with the Business, (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 customerseach Member agrees that, (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 for a period of twelve five (125) months thereafter (years after the “Restricted Period”)Closing Date, the Executive agrees that the Executive will notneither Company nor such Member will, directly or indirectly:
(a) Engage in, owncontinue in or carry on any business that competes in any aspect of the Business, manageincluding owning or controlling any financial interest in any Competitor;
(b) Consult with, operateadvise or assist in any way, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) consideration, any Competitor in any aspect of the Business, including advertising or render otherwise endorsing the products or services of any such Competitor, soliciting customers or otherwise serving as an intermediary for any such Competitor or loaning money or rendering any other form of financial assistance to any personsuch Competitor;
(c) Solicit, firminduce or otherwise offer employment or engagement as an independent contractor to, corporation or engage in discussions regarding employment or engagement as an independent contractor with, any Person who is or was an employee, independent contractor, commissioned salesperson or consultant of, or who performed similar services for, the Business, or assist any third party with respect to any of the foregoing, unless such Person has been (either directly or through the PEO) separated from his or her employment or other entityrelationship with Buyer (or the PEO) and each of its Affiliates for a period of six (6) consecutive months; provided, however, this clause shall not apply to the following individuals who will initially be employed or engaged by Buyer after the Closing but will perform services for Simple Tire and who Simple Tire may decide to employ or engage directly (collectively, the “Simple Tire Group”): Xxxx Xxxxxxxxxx (employee), Xxxx XxXxxxxxx (employee), Xxxxx Xxxxxx (employee), Xxxxx Xxxxxxx (employee), Xxxx Xxxxxx (employee), Xxxxxx Xxxxxxx (independent contractor), Xxxxxxxx Xxxx (independent contractor), and Xxxxxx Xxxxxxx (independent contractor);
(d) Engage in whatever formany practice the purpose of which is to evade the provisions of this covenant not to compete; provided, engaged however, the restrictions set forth in Section 6.7(a), (b), or (d) shall not apply to the following businesses and activities to the extent they are conducted after the Closing in substantially the same manner which they are conducted as of the Closing in the ordinary course of business through Affiliates of international or domestic maritime transport of petroleum or petroleum-based productsCompany and the Members: (A) the Simple Tire Business; provided, including but not limited to crude oil and refined petroleum products (the “Business”), in each case in any locale of any country (and includinghowever, for the avoidance of doubt, shipping through international watersthe Simple Tire Business may not design, build or maintain websites for third parties and (B) in which the Size It Up Business; provided, however, for avoidance of doubt, the Size It Up Business may not design, build or from which maintain websites for third parties; provided, further, that the Company conducts business as foregoing shall not prohibit the ownership of not more than five percent (5%) of the end securities of any Person that is listed on a national securities exchange or traded in the national over-the-counter market. The geographic scope of this covenant not to compete shall extend throughout the United States and to any foreign countries that Buyer markets the Business during the five (5) years following the Closing Date. Buyer may sell, assign or otherwise transfer this covenant not to compete, in whole or in part, to any Person that purchases all or any portion of the Employment TermBusiness, Purchased Assets or Assumed Liabilities. Recognizing the specialized nature of the Business, Company and Members acknowledge and agree that the duration, geographic scope and activity restrictions of this covenant not to compete are reasonable. Notwithstanding the foregoing, nothing herein shall prohibit in the Executive from being event that Buyer: (i) does not make a passive owner regularly scheduled payment within fifteen (15) days after such payment is due under the Buyer Notes or (ii) fails to make any payment of not more than one percent an Earn-Out Amount within fifteen (1%15) days after such payment is due under Section 3.5(g), the duration of the equity securities covenants set forth in this Section 6.7 shall be modified from five (5) years after the Closing Date to three (3) years after the Closing Date, but only if Buyer does not cure such default or failure within ninety (90) days following Buyer’s receipt of a publicly traded corporation engaged in a business that is in competition with written notice from Company describing and declaring such default or failure. For purposes of clarification, the Company or any exercise by Buyer of its subsidiaries set-off rights provided in Section 7.7 shall not affect Company’s or affiliates, so long as the Executive has no active participation Members’ obligations set forth in the business of such corporationthis Section 6.7.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ari Network Services Inc /Wi)
Noncompetition. The Executive acknowledges that (i) the Executive performs services of a unique nature for the Company that are irreplaceable, and that the Executive’s performance of such services Except as set forth below or as otherwise consented to a competing business will result or approved 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 writing by a competitorBuyer, the Executive would inevitably use or disclose such Confidential Information, (iv) the Company and its affiliates have substantial relationships with their customers Seller 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 Shareholder each agree that for a period of twelve (12) 60 months thereafter (following the “Restricted Period”)date hereof, the Executive agrees that the Executive such party will not, directly or indirectly, ownacting alone or as a member of a partnership or a holder of, manageor investor in as much as 5% of any security of any class of any corporation or other business entity (a) engage in any business in competition with the business or business conducted by the Seller on or before the date hereof or by Buyer (or Buyer's affiliates) on or after the date hereof, operateor in any service business the services of which were provided and marketed by the Seller on or before the date hereof or by Buyer (or Buyer's affiliates) on or after the date hereof in any state of the United States, control, be employed by or any foreign country in which the Seller transacted business on or before the date hereof or in which Buyer (whether as an employee, consultant, independent contractor or otherwise, and whether Buyer's affiliates) transact business on or not for compensationafter the date hereof; (b) request any present customers or render services suppliers of the Seller or any customers of Buyer (or Buyer's affiliates) to curtail or cancel their business with Buyer (or Buyer's affiliates); (c) disclose to any person, firmfirm or corporation any trade, corporation technical or other entity, technological secrets of Buyer (or Buyer's affiliates) or of the Seller or any details of their organization or business affairs or (d) induce or actively attempt to influence any employee of Buyer (or Buyer's affiliates) to terminate his employment. The Seller and the Shareholder agree that if either the length of time or geographical area as set forth 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 this Section 3.1 is deemed too restrictive in any locale court proceeding, the court may reduce such restrictions to those which it deems reasonable under the circumstances. The obligations expressed in this Section 3.1 are in addition to any other obligations that the Seller and the Shareholder may have under the laws of any country state requiring a corporation selling its assets (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 subsidiaries or affiliates, so long as the Executive has no active participation in the business shareholder of such corporation) to limit its activities so that the goodwill and business relations being transferred with such assets will not be materially impaired. The Seller and the Shareholder further agree and acknowledge that Buyer does not have any adequate remedy at law for the breach or threatened breach by the Seller or the Shareholder of the covenants contained in this Section 3.1, and agree that Buyer may, in addition to the other remedies which may be available to it hereunder, file a suit in equity to enjoin the Seller or the Shareholder from such breach or threatened breach. If any provisions of this Section 3.1 are held to be invalid or against public policy, the remaining provisions shall not be affected thereby. The Seller and the Shareholder acknowledge that the covenants set forth in this Section 3.1 are being executed and delivered by such party in consideration of (i) the covenants of Buyer contained in this Agreement, (ii) additional consideration in the amount of $300,000 payable by Buyer on the date hereof by wire transfer of immediately available funds to the Seller and the Shareholder, in those amounts and to those accounts specified in Schedule 3.1 hereto and (iii) for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged.
Appears in 1 contract
Noncompetition. The Executive acknowledges that Raytheon agrees, on behalf of Raytheon and the Affiliates of Raytheon (i) the Executive performs services of a unique nature for the Company that are 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 affiliates, (iii) in the course of the Executive’s employment by a competitorexcluding independently trusteed benefit plans, the Executive would inevitably use or disclose such Confidential Information"Raytheon Group"), (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 that for a period of twelve three (123) months thereafter years after the date hereof (the “"Restricted Period”"), no member of the Executive agrees that the Executive Raytheon Group will not, engage directly or indirectlyindirectly in competition with the Company, own, manage, operate, control, be employed by (whether individually or as an employee, a consultant, independent contractor partner, owner or otherwisestockholder of an Entity, and whether or not for compensation) or render services to any person, firm, corporation or other entity, in whatever form, engaged in the business of international selling silicon semiconductor devices manufactured or domestic maritime transport of petroleum sold by the Semiconductor Division Business or petroleum-based products, including but not limited to crude oil and refined petroleum products the Company (the “"Restricted Business”"), in each case in any locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit any member of the Executive Raytheon Group from being a passive owner of not more (a) owning, directly or indirectly, less than one ten percent (110%) of any class of securities listed on a national securities exchange or traded publicly in the equity securities over-the-counter market, (b) directly or indirectly acquiring a business which engages in the Restricted Business if such business is twenty percent (20%) or less (measured by net revenues) of a publicly traded corporation engaged in larger business acquired by a member of the Raytheon Group, provided that Raytheon shall not make any Raytheon Licensed IP available to such business, (c) acquiring a business that is in competition with the Company or any of its subsidiaries or affiliates, so long as the Executive has no active participation which engages in the Restricted Business if such business is more than twenty percent (20%) but less than fifty percent (50%) (measured by net revenues) of a larger business acquired by a member of the Raytheon Group, provided that (i) such corporationmember of the Raytheon Group places such competitive business for sale promptly after its acquisition and uses commercially reasonable efforts to complete such sale within the Restricted Period and (ii) Raytheon shall not make any Raytheon Licensed IP available to such business, (d) continuing to produce and sell those products now being produced and sold by members of the Raytheon Group (including within the foregoing all products that were under development as of the date hereof), except those silicon semiconductor devices that have substantially similar specifications to those manufactured by the Company, and (e) continuing any business acquired in connection with Raytheon's acquisition of the defense industry businesses of Texas Instruments Incorporated and Xxxxxx Electronics Corporation.
Appears in 1 contract
Noncompetition. The Executive acknowledges Employee agrees that (i) the Executive performs services of a unique nature for the Company that are 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 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 term of this agreement and for a period of twelve one (121) months thereafter (the “Restricted Period”)year thereafter, the Executive agrees that Employee shall not, unless acting pursuant hereto or with the Executive will notprior written consent of the Board of Directors of the Company, directly or indirectly:
(a) solicit business from or perform services for, any persons, company or other entity which at any time during the Employee's employment by the Company is a client or customer of the Company if such business or services are of the same general character as those engaged in or performed by the Company;
(b) solicit for employment or in any other fashion hire any of the employees of the Company;
(c) own, manage, operate, controlfinance, join, control or participate in the ownership, management, operation, financing or control of, or be employed by (whether connected as an officer, director, employee, consultantpartner, independent contractor principal, agent, representative, consultant or otherwise, and whether otherwise with any business or not for compensation) or render services to any person, firm, corporation or other entity, in whatever form, enterprise engaged in the business of international designing, developing, and implementing Internet web site applications and strategies, or domestic maritime transport any other business engaged in by the Company for which Employee had primary responsibility, or any of petroleum its affiliates (collectively, the "Business") within a radius of 20 miles from Company's or petroleum-based products, including but not limited to crude oil and refined petroleum products any of Company's affiliates principal places of business (the “Business”"Restricted Area");
(d) use or permit his name to be used in connection with, any business or enterprise engaged in each case in any locale the Business within the Restricted Area; or
(e) use the name of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as or any name similar thereto, but nothing in this clause shall be deemed, by implication, to authorize or permit use of the end such name after expiration of the Employment Term. Notwithstanding the foregoingsuch period; provided, nothing herein however, that this provision shall not be-construed to prohibit the Executive from being a passive owner ownership by the Employee of not more than one percent (1%) 3% of any class of the outstanding equity securities of a publicly traded any corporation which is engaged in a business that is in competition with the Company or any of its subsidiaries the foregoing businesses having a class of securities registered pursuant to the Securities Exchange Act of 1934. In the event that the provisions of this Section should ever be adjudicated to exceed the time, geographic, service or affiliatesproduct limitations permitted by applicable law in any jurisdiction, so long as then such provisions shall be deemed reformed in such jurisdiction to the Executive has no active participation in the business of such corporationmaximum time, geographic, service or product limitations permitted by applicable law.
Appears in 1 contract
Noncompetition. The Executive acknowledges It is acknowledged by the Company and the Chairman -------------- that by virtue of the position he has held with Xxxx, and 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 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 have been and will in the future be disclosed or entrusted to the Chairman, the business good will of 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 Agreement, the Chairman agrees to the non-competition obligations hereunder. While the Chairman continues to be 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 conduct business pursuant to a business strategy adopted by the Board before the Chairman's termination of employment, except as permitted by the Company upon its prior written consent, (i) the Executive performs services of a unique nature for the Company that are 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 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 for a period of twelve (12) months thereafter (the “Restricted Period”), the Executive agrees that the Executive will notenter, directly or indirectly, owninto the employ of, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render or engage in, directly or indirectly, any services to any person, firm, firm or corporation which directly competes with the Company (or other entity, in whatever form, engaged in any Affiliate) with respect to any business then conducted by the Company (or any Affiliate) or any 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts (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 relationship or capacity. The ownership of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from being a passive owner of not more than one up to three percent (13%) of any class of the equity outstanding securities of a any publicly traded corporation, even though such corporation engaged may be a Competitor, shall not be deemed as constituting an interest in a business that is in competition with such Competitor which violates clause (ii) of the Company or any of its subsidiaries or affiliates, so long as the Executive has no active participation in the business of such corporationimmediately preceding sentence.
Appears in 1 contract
Noncompetition. The Executive acknowledges (a) Black & Decker covenants and agrees, as an inducement to Buyer to enter intx xxxx Agreement and to consummate the Contemplated Transactions, that (i) the Executive performs services of a unique nature for the Company that are 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 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 for a period of twelve five years following the Closing Date neither Black & Decker nor any of its Subsidiaries (12for so long but only for so xxxx xs it remains a Subsidiary of Black & Decker) months thereafter (the “Restricted Period”), the Executive agrees that the Executive will notwill, directly or indirectly, owncarry on or participate ix xxx ownership, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor management or otherwise, and whether or not for compensation) or render services to control of any person, firm, corporation or other entity, in whatever form, business enterprise that is engaged in the business Glass Machinery Business (a "Competing Business").
(b) Nothing contained in this Section 5.06 shall limit or restrict the right 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 Black & Decker or any of its subsidiaries to hold and make investments in sexxxxxxes of any Person that has securities listed on a national securities exchange or affiliatesadmitted to trading privileges thereon or actively traded in a generally recognized over-the-counter market, so long as provided that the Executive has no active participation aggregate equity interest therein of Black & Decker and any of its Subsidiaries does not exceed five percent of xxx xutstanding shares or interests in such Person at the time of their investment therein.
(c) Notwithstanding any provisions of this Section 5.06 to the contrary, if Black & Decker or any of its Subsidiaries acquires the assets or securities xx any Person that is engaged in a Competing Business, such acquisition shall not be deemed to be in violation of this Section 5.06, provided that (A) (i) at the time of acquisition the Competing Business represents less than one-third of the gross revenues of the acquired Person for the acquired Person's most recently completed fiscal year and (ii) Black & Decker and its Subsidiaries use reasonable commercial efforts to xxxxxt the operations of such Competing Business subsequent to such acquisition, or (B) at the time of acquisition the Competing Business represents less than five percent of the gross revenues of the acquired Person for the acquired Person's most recently completed fiscal year.
(d) Black & Decker recognizes and agrees that a breach by it or any of its Subsxxxxxxes of any of the covenants and agreements in this Section 5.06 could cause irreparable harm to Buyer, that Buyer's remedies at law in the business event of such corporationbreach would be inadequate, and that, accordingly, in the event of such breach a restraining order or injunction or both may be issued against Black & Decker or any of its Subsidiaries in addition to any other rightx xxx remedies that may be available to Buyer under Applicable Law. If this Section 5.06 is more restrictive than permitted by the Applicable Laws of the jurisdiction in which Buyer seeks enforcement hereof, this Section 5.06 shall be limited to the extent required to permit enforcement under such Applicable Laws.
Appears in 1 contract
Noncompetition. The Executive acknowledges that (i) the Executive performs services For so long as a Member is a member of a unique nature for the Company that are irreplaceable, and that the Executive’s performance of such services to a competing business will result in irreparable harm to the Company, and for one (ii1) the Executive has had and will continue to have access to Confidential Informationyear thereafter, which, if disclosed, would unfairly and inappropriately assist in competition against the Company or any each Member on behalf 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 itself and its affiliates have substantial relationships with their customers Affiliates hereby covenants 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 for a period of twelve (12) months thereafter (the “Restricted Period”), the Executive agrees that the Executive it will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or other entity, engage in whatever form, engaged direct competition with the Company in the Company’s “court and commercial newspaper” business (as that term is commonly understood in the industry) within the State of international or domestic maritime transport of petroleum or petroleum-based products, including but not limited to crude oil and refined petroleum products Michigan (the “BusinessTerritory”); provided, in each case in however, that the foregoing restrictions shall not prohibit a Member or any locale of its Affiliates from owning less than five percent (5%) of any country (and including, for the avoidance class of doubt, shipping through international waters) equity security in which or from which the Company conducts business as of the end of the Employment Terma publicly held company. Notwithstanding the foregoing, (a) the Members acknowledge that (i) American Servicing Corporation, a Michigan corporation, (ii) 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 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 public notices in the Territory; (c) the provisions of this Section 7.1 shall not be binding on Legal Press or its Affiliates after December 31, 2015 if Legal Press has ceased to be a Member before that date; and (d) nothing herein shall in this Operating Agreement (or otherwise) will prohibit or affect the Executive from being a passive owner of not more than one percent (1%) other business operations of the equity securities of a publicly traded corporation engaged in a business that is in competition with the Company Members or any of its subsidiaries or affiliates, so long as the Executive has no active participation in the business of such corporationtheir respective Affiliates.
Appears in 1 contract
Samples: Operating Agreement (Dolan Media CO)
Noncompetition. The Executive acknowledges that 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 the Executive performs is to provide to the Competitor are the same as, or substantially similar to, any of the services of a unique nature for that the Executive provided to the Company that are irreplaceableor the Affiliates, and that the Executive’s performance of such services are to a competing business will result be provided with respect to any location in irreparable harm which the Company or an Affiliate had material operations during the twelve (12) month period prior to the CompanyTermination Date, or with respect to any location in which the Company or an Affiliate had devoted material resources to establishing operations during the twelve (12) month period prior to the Termination Date; or (ii) the Executive has had and will continue to have access to trade secrets, Confidential Information, whichor proprietary information (including, without limitation, confidential or proprietary methods) of the Company and the Affiliates to which the Executive had access could reasonably be expected to benefit the Competitor if disclosedthe 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 enterprise (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 unfairly and inappropriately assist be) materially competitive in competition against any way with any business in which the Company or any of its affiliates, the Affiliates were engaged during the twelve (iii12) in the course of month period prior to the Executive’s employment by a competitorTermination Date (including, without limitation, any business if the Company devoted material resources to entering in such business during such twelve (12) month period), but for purposes of clause (c) above, the term “Competitor” shall be limited to those businesses to which the Executive devoted more than an insignificant amount of time while employed by the Company. Notwithstanding the foregoing, the term “Competitor” shall not include a business of a Competitor if such business would inevitably use not, as a stand-alone enterprise, constitute a “Competitor” under the foregoing definition, provided that Executive does not render any services to, or disclose such Confidential Information, (iv) otherwise assist the portion of the business that competes with 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 employmentAffiliates. Accordingly, during the Executive’s employment hereunder and for a period of twelve (12) months thereafter (the “Restricted Period”), the Executive agrees that the Executive will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or 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 locale of any country (and including, for For the avoidance of doubt, shipping through international waters) the Company’s and Affiliates’ businesses shall include, without limitation, the lines of business set forth in which or from which the Company’s annual report on Form 10-K, provided that nothing in this sentence shall be construed to limit the type of business of the Company conducts business and the Affiliates or the restrictions with respect to such businesses in the future. Any payments owed to Executive at time of separation as of the end of the Employment Term. Notwithstanding the foregoing, nothing described herein shall prohibit 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 be contingent upon Executive’s compliance with the Company or any of its subsidiaries or affiliates, so long as the Executive has no active participation in the business of such corporationpost-employment noncompetition provisions.
Appears in 1 contract
Samples: Employment Agreement (NEUROONE MEDICAL TECHNOLOGIES Corp)
Noncompetition. The Executive Employee acknowledges that (i) the Executive performs Employee shall perform services of a unique nature for the Company that are irreplaceable, and that the ExecutiveEmployee’s performance of such services to a competing business “Competitive Business” (as defined below) will result in irreparable harm to the Company, (ii) the Executive has had and will continue to have Company shall provide the Employee access to Confidential Information, Information which, if disclosed, would unfairly and inappropriately assist in competition against the Company or any of and its affiliates, (iii) in the course of the ExecutiveEmployee’s employment by a competitorCompetitive Business during the non-compete period set forth herein, the Executive Employee 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 Employee shall 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 Employee shall be expected to generate goodwill for the Company and its affiliates in the course of the ExecutiveEmployee’s employment, (vi) the Company has invested significant time and expense in developing the Confidential Information and goodwill, and (vii) the Company’s operations and the operations upon with the Employee shall work are nationwide in scope. Accordingly, during the ExecutiveEmployee’s employment hereunder and for a period of twelve (12) months thereafter (following a termination of the “Restricted Period”)Employee’s employment for any reason, the Executive Employee agrees that the Executive Employee will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or other entity, in whatever form, engaged in a Competitive Business 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment TermUnited States. Notwithstanding the foregoing, nothing herein shall prohibit the Executive Employee from being a passive owner of not more than one two percent (12%) of the equity securities of a publicly traded corporation engaged in a business that is in competition with the Company or any of its subsidiaries or affiliatesCompetitive Business, so long as the Executive Employee has no active participation in the business of such corporation. For purposes hereof, the term “Competitive Business” shall mean a publicly traded real estate investment trust that is identified by the National Association of Real Estate Investment Trusts as a “mall REIT” or “shopping center REIT” (other than the Company or a surviving or resulting entity upon a Change of Control, or any of their respective affiliates) and the term “Employee’s Termination” shall mean the date the Employee ceases to be employed by the Company for whatever reason, whether voluntarily or involuntarily.
Appears in 1 contract
Samples: Employment Agreement (Macerich Co)
Noncompetition. The Executive Provider acknowledges that (i) Service Company will incur substantial costs in providing the Executive performs equipment, support services, personnel, and other items and services of a unique nature for the Company that are irreplaceable, the subject matter of this Agreement and that in the Executive’s performance process of such providing services to a competing business under this Agreement, Provider will result in irreparable harm to the Company, (ii) the Executive has had and will continue to learn or have access to financial and other Confidential Information, which, Information of Service Company to which Provider would not otherwise be exposed. Provider also recognizes that the services to be provided by Service Company will be feasible only 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 employmentProvider operates an active practice. Accordingly, Provider further agrees as follows:
(a) During the Term, except for any Clinic made available to Provider for its use pursuant to this Agreement, Provider shall not establish, operate, or provide Dental Care at any dental office, clinic or other dental care facility anywhere within the Practice Territory nor have any ownership interest, direct or indirect, in any entity, or participate in any joint venture, which operates any such office, clinic or facility; and
(b) Except as specifically approved by Service Company in writing, during the Executive’s employment hereunder Term and for a period of twelve (12) months thereafter (five years immediately following the “Restricted Period”)date this Agreement is terminated for any reason, the Executive agrees that the Executive will not, Provider shall not directly or indirectly, own, manage, operate, control, be employed by indirectly own (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or other entity, in whatever form, engaged in the business excluding ownership 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from being a passive owner of not more less than one percent (1%) of the equity securities of a any publicly traded corporation engaged in a business that is entity), manage, operate, control, lend funds to, lend its name to, maintain any interest in, or otherwise enter into, engage in, or promote or assist (financially or otherwise) any entity, business, or enterprise which (i) provides, distributes, or promotes any type of management or administrative services or products to third parties in competition with Service Company in the Practice Territory, or (ii) offers any type of service or product to third parties substantially similar to those offered by Service Company to Provider in the Practice Territory. Notwithstanding the above restriction, nothing herein shall prohibit Provider or any of its subsidiaries members from providing management and administrative services to its or affiliatestheir own dental practices after the termination of this Agreement, so and nothing herein shall prohibit Provider or its members from contracting with a third party manager to provide administrative or management services for its or their dental practices after termination of this Agreement as long as such relationship complies with the Executive has no active participation in the business provisions of such corporationthis section.
Appears in 1 contract
Noncompetition. The Executive acknowledges that (a) Shareholder, Parent, the Company and Merger Sub agree that, due to the nature of Shareholder’s association with the Company and its subsidiaries, Shareholder has: (i) acquired valuable trade secrets and other confidential and proprietary information relating to the Executive performs services Business and (ii) acquired the ability to control and direct the goodwill of a unique nature for the Company Business. Shareholder acknowledges that are irreplaceablesuch intellectual property and goodwill is crucial to the success, profitability and viability of the Company’s Business and will continue to be so after the Closing. Shareholder further agrees that the ExecutiveShareholder’s performance disclosure or unauthorized use of such services to a competing business information or redirection of goodwill will result in irreparable cause substantial loss and harm to the Company, (ii) its subsidiaries and Parent and its Subsidiaries. In light of the Executive has had foregoing, the parties also agree that the covenants set forth in this Agreement are necessary to protect the entire goodwill and will continue to have access to Confidential Information, which, if disclosed, would unfairly and inappropriately assist in competition against value of the intellectual property of the Company or any of its affiliates, through and following the Merger.
(iiib) in During the course of period commencing at the Executive’s employment by a competitor, the Executive would inevitably use or disclose such Confidential Information, (iv) the Company Closing 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 for a period of twelve (12) months thereafter ending five years later (the “Restricted Period”), the Executive Shareholder agrees that Shareholder shall not, anywhere in the Executive will notBusiness Area (as defined below), directly or indirectly, own, manage, operate, join, control, participate in, or be employed 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 provide services to (whether as an employee, employee or consultant, independent contractor with or otherwisewithout pay), and whether or not for compensation) or render services to any personbusiness, firmindividual (including, corporation without limitation, any relative of the Shareholder), corporation, limited liability company, partnership, firm or 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 entity that is in competition with then, or to Shareholder’s actual knowledge intends to be, a competitor of the Company or any of its subsidiaries Subsidiaries, including any individual or affiliatesentity then engaged, so long as the Executive has no active participation or to Shareholder’s actual knowledge is intending to engage, in the business 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 does not, directly or indirectly, “beneficially own” (as defined in Rule 13d-3 of the Securities Exchange Act of 1934, as amended) five percent (5.0%) or more of any class of securities of such corporationentity; 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 investment in any such Competitor.
Appears in 1 contract
Noncompetition. The Executive acknowledges that Until one (1) year after termination of Employee's employment hereunder, Employee will not (i) engage directly or indirectly, alone or as a shareholder, partner, officer, director, employee or consultant of any other business organization, in any business activities which relate to the Executive performs services acquisition and consolidation of a unique nature for medical practices which were either conducted by the Company that are irreplaceable, and that at the Executive’s performance time of Employee's termination or "Proposed to be Conducted" (as defined herein) by the Company at the time of such services to a competing business will result in irreparable harm to termination (the Company"Designated Industry"), (ii) divert to any competitor of the Executive has had Company in the Designated Industry any customer of Employee, or (iii) solicit or encourage any officer, employee, or consultant of the Company to leave its employ for employment by or with any competitor of the Company in the Designated Industry. The parties hereto acknowledge that Employee's noncompetition obligations hereunder will not preclude Employee from (i) owning less than 5% of the common stock of any publicly traded corporation conducting business activities in the Designated Industry or (ii) serving as an officer, director, stockholder or employee of an entity engaged in the healthcare industry whose business operations are not competitive with those of the Company. "Proposed to be Conducted," as used herein, shall include those business activities which are the subject of a formal, written business plan approved by the Board of Directors prior to termination of Employee's employment and which the Company takes material action to implement within 12 months of the termination of Employee's employment. Employee will continue to have access to Confidential Information, which, if disclosed, would unfairly and inappropriately assist in competition against be bound by the Company or any provisions 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 this Section 9 until their customers and the Executive has had expiration and will continue not be entitled to have access to these customers, (v) the Executive has received and will receive specialized training any compensation from the Company and its affiliateswith respect thereto. If at any time the provisions of this Section 9 are determined to be invalid or unenforceable, and (vi) the Executive has generated by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 9 will be considered divisible and will continue become and be immediately amended to generate goodwill for only such area, duration and scope of activity as will be determined to be reasonable and enforceable by the Company court or other body having jurisdiction over the matter; and its affiliates in the course of the Executive’s employment. Accordingly, during the Executive’s employment hereunder and for a period of twelve (12) months thereafter (the “Restricted Period”), the Executive Employee agrees that the Executive this Section 9 as so amended will not, directly be valid and binding as though any invalid or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or unenforceable provision had not for compensation) or render services to any person, firm, corporation or 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 subsidiaries or affiliates, so long as the Executive has no active participation in the business of such corporationbeen included herein.
Appears in 1 contract
Samples: Employment Agreement (Physicians Resource Group Inc)
Noncompetition. The Executive Employee acknowledges that during the course of Employee’s affiliation with the Company Group (i) the Executive Employee performs services of a unique nature for the Company Group that are irreplaceable, and that the ExecutiveEmployee’s performance of such services to a competing business will result in irreparable harm to the CompanyCompany Group, (ii) the Executive Employee has had and will continue to have access to Confidential Informationtrade secrets and other confidential information of the Company Group, which, if disclosed, would unfairly and inappropriately assist in competition against the Company or any of its affiliatesGroup, (iii) in the course of the ExecutiveEmployee’s employment or affiliation by a competitor, the Executive Employee would inevitably use or disclose such Confidential Informationtrade secrets and confidential information, (iv) the Company and its affiliates have Group has substantial relationships with their customers customers, strategic partners, the health insurance providers with whom they enter into agreements, patients and patient referral sources (including, but not limited to any health care professional, consultant and any similar type referral sources, collectively, the Executive “Referral Sources”) and Employee has had and will continue to have access to these customerscustomers and Referral Sources, (v) the Executive has received and Employee will receive specialized training from the Company and its affiliatesGroup, and (vi) the Executive has generated and will continue to generate goodwill for Employee is acquiring an equity interest in the Company and its affiliates in the course of the Executive’s employmentconnection with his/her entering into this Agreement. Accordingly, during the ExecutiveEmployee’s employment hereunder with the Company Group and for a period of twelve (12) months thereafter (the “Restricted Period”)thereafter, the Executive Employee agrees that the Executive Employee will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any personCompetitive Opportunity in any county in the United States that the Company Group where the Company is operating, firm, corporation or has a pending letter of intent or other entitysimilar agreement to commence operations. A “Competitive Opportunity” means any business in which the primary purpose is to engage in primary care medicine or the creation and maintenance of an integrated healthcare network of providers which receives or is intended to receive a substantial portion (i.e., in whatever form, engaged in the business excess 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from being a passive owner of not more than one percent (125%) of the equity securities its revenue through at-risk Medicare Advantage reimbursements or percentage of a publicly traded corporation engaged in a business that is in competition with the Company or any of its subsidiaries or affiliates, so long as the Executive has no active participation in the business of such corporationpremium payments.
Appears in 1 contract
Samples: Incentive Unit Grant Agreement (P3 Health Partners Inc.)
Noncompetition. The Executive acknowledges that (a) Each Seller shall for a period of three years from the New York Closing Date, refrain from, either alone or in conjunction with any other Person, or directly or indirectly through any of their present or future Affiliates, employees or consultants:
(i) employing, engaging, soliciting or seeking to employ or engage any Person who within the Executive performs services prior six months had been an employee of Purchaser or any of its Affiliates engaged in the Business;
(ii) causing or attempting to cause (A) any client, customer or supplier of the Business to terminate or materially reduce its business with Purchaser or any of its Affiliates or (B) any officer, employee or consultant of Purchaser or any of its Affiliates engaged in the Business to resign or sever a unique nature for relationship with Purchaser or any of its Affiliates;
(iii) disclosing (unless compelled by judicial or administrative process) or using any confidential or secret information relating to the Company Business or any client, customer or supplier of the Business; or
(iv) participating or engaging in (other than through the ownership of 5% or less of any class of securities registered under the Exchange Act), or otherwise lending assistance (financial or otherwise) to any Person participating or engaged in, any of the lines of business which comprised the New Jersey Business or the New York Business on the New Jersey Closing Date or New York Closing Date, respectively, in the State of New Jersey or New York.
(b) The parties hereto recognize that are irreplaceablethe Laws and public policies of the various states of the United States may differ as to the validity and enforceability of covenants similar to those set forth in this Section. It is the intention of the parties that the provisions of this Section be enforced to the fullest extent permissible under the Laws and policies of each jurisdiction in which enforcement may be sought, and that the Executive’s performance unenforceability (or the modification to conform to such Laws or policies) of such services to a competing business will result in irreparable harm to any provisions of this Section shall not render unenforceable, or impair, 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 remainder 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 provisions of the Executive’s employmentthis Section. Accordingly, during if any provision of this Section shall be determined to be invalid or unenforceable, such invalidity or unenforceability shall be deemed to apply only with respect to the Executive’s employment hereunder operation of such provision in the particular jurisdiction in which such determination is made and not with respect to any other provision or jurisdiction.
(c) The parties hereto acknowledge and agree that any remedy at Law for a period any breach of twelve (12) months thereafter (the “Restricted Period”)provisions of this Section would be inadequate, and each Seller hereby consents to the Executive agrees granting by any court of an injunction or other equitable relief, without the necessity of actual monetary loss being proved, in order that the Executive will not, directly breach or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 subsidiaries or affiliates, so long as the Executive has no active participation in the business threatened breach of such corporationprovisions may be effectively restrained.
Appears in 1 contract
Noncompetition. The Executive acknowledges (a) Parent covenants and agrees, as an inducement to Buyer to enter into this Agreement and to consummate the Contemplated Transactions, that (i) the Executive performs services of a unique nature for the Company that are 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 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 for a period of twelve five years following the Closing Date no Seller Company (12for so long but only for so long as it remains a Seller Company) months thereafter (the “Restricted Period”), the Executive agrees that the Executive will notwill, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor carry on or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or other entity, in whatever form, engaged participate in the ownership, management or control of, or license Intellectual Property to be used in a manner competitive with the TTS Business by, any business of international enterprise (other than the Seller Companies' ownership interest in TTSI following Closing) that competes anywhere in the world with the TTS Business as it is being conducted on the Closing Date (a "Competing Business").
(b) Nothing contained in this Section 5.06 shall limit or domestic maritime transport of petroleum or petroleum-based products, including but not limited to crude oil and refined petroleum products (restrict the “Business”), in each case in any locale right of any country (Seller Company to hold and includingmake investments in securities 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, for provided that the avoidance aggregate equity interest therein of doubt, shipping through international waters) in which or from which the Company conducts business as Seller Companies does not exceed five percent of the end outstanding shares or interests in such Person at the time of the Employment TermSeller Companies' investment therein. Notwithstanding any provisions of this Section 5.06 to the foregoingcontrary, nothing herein shall prohibit the Executive from being a passive owner of not more than one percent (1%) of the equity if Parent or any other Seller Company acquires securities of a publicly traded corporation any Person that is engaged in a business Competing Business, Seller Companies shall not be deemed to be in violation of this Section 5.06, provided that is in competition with (A) (i) at the Company time of acquisition the Competing Business represents less than one-third of the gross revenues of the acquired Person for the acquired Person's most recently completed fiscal year and (ii) Seller Companies use reasonable commercial efforts to divest the operations of such Competing Business subsequent to such acquisition, or (B) at the time of acquisition the Competing Business represents less than five percent of the gross revenues of the acquired Person for the acquired Person's most recently completed fiscal year.
(c) Parent recognizes and agrees that a breach by Seller Companies of any of its subsidiaries or affiliatesthe covenants and agreements in this Section 5.06 could cause irreparable harm to Buyer, so long as the Executive has no active participation that Buyer's remedies at law in the business event of such corporation.breach would be inadequate, and that, accordingly, in the event
Appears in 1 contract
Samples: Reorganization, Recapitalization and Stock Purchase Agreement (True Temper Sports Inc)
Noncompetition. The Executive acknowledges that “Noncompete Period” shall be the Term plus the one (i1) the Executive performs services of a unique nature for the Company that are 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 affiliates, (iii) in the course year period immediately following termination of the Executive’s employment by a competitorwith 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 would inevitably use will not directly, or disclose such Confidential Informationindirectly, 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 (ivx) 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 and its affiliates have substantial relationships with their customers and 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 has had and will continue to have access to these customers, (v) the Executive has received and will receive specialized training from is employed by the Company and its affiliates, and (vias provided in Section 5(b) hereof. The provisions contained in this Section 5(a) shall survive the Executive has generated and will continue to generate goodwill for the Company and its affiliates in the course termination of the Executive’s employmentemployment pursuant to Section 9 hereof or otherwise. AccordinglyIn the event the Executive breaches any of the covenants set forth in this Section 5(a), the running of the period of restriction set forth herein shall be tolled for the period during which the breach exists and recommence upon the Executive’s employment hereunder and for a period of twelve (12) months thereafter (the “Restricted Period”), the Executive agrees that the Executive will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 compliance with the Company or any terms of its subsidiaries or affiliates, so long as the Executive has no active participation in the business of such corporationthis Section 5(a).
Appears in 1 contract
Noncompetition. The Executive acknowledges Sellers recognize that (i) Buyer's decision to enter into this Agreement is induced primarily because of the Executive performs services covenants and assurances made by Sellers in this Agreement; that Sellers' covenant not to compete is necessary to ensure the continuation of a unique nature for the Company that are irreplaceable, business and the reputation of Buyer; and that the Executive’s performance of such services irrevocable harm and damage will be done to a competing business will result Buyer if Sellers compete with Buyer within certain specified areas. Therefore, 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 consideration of the Executive’s employment by a competitorpromises of Buyer in this Agreement, Sellers covenant and agree that during 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 term of the Executive’s employment. AccordinglyManagement Services Agreement, during the Executive’s employment hereunder and for a period of twelve one (121) months thereafter (year after the “Restricted Period”)termination or expiration of the Management Services Agreement, the Executive agrees that the Executive will notSellers, through Medical Practice or individually, shall not directly or indirectly, indirectly own, manage, operate, control, or be otherwise associated with, participate in the management or control of, be employed by (whether as an employeeby, consultantconsult with, independent contractor lend funds to, lend Sellers' Medical Practice's name to, receive any remuneration from or otherwise, and whether or not for compensation) or render services to maintain any person, firm, corporation or 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 interest whatsoever in any locale enterprise having to do with the provision, distribution, marketing, promotion, or advertising of any country (and including, for the avoidance type of doubt, shipping through international waters) in which management or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 administrative services or products in competition with the Company 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 its subsidiaries service(s) or affiliatesproduct(s) similar to those offered by the Buyers, so long as provided, however, that this Section 11.1 is not intended to limit the Executive has no active participation ability of the Sellers to practice orthopedic medicine within the Medical Practice Area. If any Seller shall breach any obligation of this Section, in addition to any other remedies available under this Agreement, at law or in equity, Buyer shall be entitled to enforce this Agreement by injunctive relief and by specific performance of this Agreement, such relief to be without the necessity of posting a bond, cash or otherwise. 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 amount within thirty (30) days after Buyer notifies the breaching Seller(s) of the breach of this Section 11 or after a final binding judgement.
Section 11.1 shall not apply (i) in the business event Medical Practice terminates the Management Services Agreement due to IOI Regional's material breach of such corporationthe Management Services Agreement; or (2) the Management Services Agreement is terminated due to legislative, regulatory or administrative decisions that effects the provisions of the Management Services Agreement and that cannot be resolved by mutual agreement of the parties.
Appears in 1 contract
Samples: Stock Purchase Agreement (Integrated Orthopedics Inc)
Noncompetition. The Executive acknowledges that (i) During the Executive performs services of a unique nature for the Company that are 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 affiliates, (iii) in the course term of the Executive’s employment by a competitor, the Executive would inevitably use or disclose such Confidential Information, (iv) with the Company (“Employment Term”) 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 two (2)-year period following the course involuntary termination of the Executive’s employment. Accordingly, during the Executive’s such employment hereunder and for a period of twelve (12) months thereafter under any circumstances (the “Restricted Period”), the Executive agrees that shall not, within any geographic area covered by any Independent System Operator (ISO) or Regional Transmission Organization (RTO) in which the Executive will notCompany or any of its subsidiaries or affiliates is engaged in business or marketing activities (“Restricted Areas”), directly or indirectly, own, manage, operate, control, or provide executive or management level consulting, employment or management services (“Restricted Services”) to any (i) Independent Power Producer (IPP), (ii) “hybrid” unregulated electricity provider that operates merchant energy assets that are competitive with the assets owned by the Company or any of its 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 or other services to be employed by (whether as an employee, consultant, independent contractor or otherwiseprovided, and whether or the 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 Section 4(a), otherwise the provisions of this Section 4(a) shall be deemed waived by the Company, which waiver shall not for compensation) or render services be unreasonably withheld. The scope of the Restricted Areas and Restricted Service Recipients shall be determined as defined above according to any person, firm, corporation or other entity, in whatever form, engaged in the current 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as or its affiliates during the last year of the end of the Employment TermExecutive’s employment. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from being a passive owner Executive’s ownership solely as an investor of not more than one two percent (12%) or less of the equity outstanding securities of a publicly any class of any publicly-traded corporation engaged in a business that is in securities of any company shall not, by itself, be considered to be competition with the Company or any of its subsidiaries or affiliates, so long as the Executive has no active participation in the business of such corporation.
Appears in 1 contract
Noncompetition. The Executive acknowledges that (i) In the Executive performs services of a unique nature for the Company that are 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 affiliates, (iii) in the course case of the Executive’s 's termination of employment by a competitorpursuant to Section 7(b) without Good Reason, the Executive would inevitably use or disclose such Confidential Informationshall not, until July 1, 2000, (iva) engage anywhere within the Company and its affiliates geographical areas in which the Companies have substantial relationships with conducted 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 business operations as of the Executive’s employment. Accordingly, during date hereof or at any time prior to the Executive’s employment hereunder and for a period Date of twelve (12) months thereafter (the “Restricted Period”), the Executive agrees that the Executive will notTermination, directly or indirectly, ownalone or as a shareholder, manageprincipal, operateagent, controlpartner, be employed by (whether as an employeeofficer, consultantdirector, independent contractor employee or otherwiseconsultant of any other organization, and whether or not for compensation) or render services to any person, firm, corporation or other entity, in whatever form, engaged in the business of international insurance, reinsurance or domestic maritime transport of petroleum or petroleum-based products, including but not limited to crude oil and refined petroleum products any other activity conducted by the Companies (the “Business”)"Designated Industry") in competition with the Companies; (b) divert to any competitor of the Companies in the Designated Industry any customer of the Companies; or (c) solicit or encourage any officer, employee or consultant of the Companies to leave their employ for employment by or with any competitor of the Companies in the Designated Industry; provided, however, that the Executive may invest in stock, bonds, or other securities of any similar business in the Designated Industry (but without otherwise participating in such Designated Industry) if (i) such stock, bonds, or other securities are listed on any national or regional securities exchange or have been registered under Section 12(g) of the Exchange Act; and (ii) his investment does not exceed, in each the case in any locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as class of the end capital stock of the Employment Term. Notwithstanding the foregoingany one issuer, nothing herein shall prohibit the Executive from being a passive owner of not more than one percent (1%) of the equity securities issued and outstanding shares, or, in the case of a publicly traded corporation engaged in a business that is in competition with other securities, one percent (1%) of the Company aggregate principal amount thereof issued and outstanding. If at any time the provisions of this Section 11 shall be determined to be invalid or any unenforceable, by reason of its subsidiaries being vague or affiliatesunreasonable as to area, so long duration or scope of activity, this Section 11 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and the Executive has no active participation agrees that this Section 11 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein. Nothing in this Section 11 shall prevent or restrict the Executive from engaging in any business of such corporationor industry other than the Designated Industry in any capacity.
Appears in 1 contract
Samples: Employment Agreement (Nac Re Corp)
Noncompetition. The Executive acknowledges that (i) the Executive performs services of a unique nature for the Company that are 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, 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 for a period of twelve the Restricted Period (12) months thereafter (the “Restricted Period”as defined below), the Executive agrees that the Executive will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or 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 engage in any locale of any country Competitive Activities (and including, for the avoidance of doubt, shipping through international watersas defined below) in which any basin or from location in which the Company conducts business or its subsidiaries (a) owns any Hydrocarbon Interests (as defined below) or has demonstrable plans to commence any activities or direct or indirect investment in Hydrocarbon Interests as of the end Effective Date, or (b) after the Effective Date and before the earlier of a Change-in-Control (as defined in the Employment TermPlan) 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 commence any activities or direct or indirect investment in Hydrocarbon Interests. Notwithstanding the foregoing, nothing herein shall prohibit 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 subsidiaries or affiliates, so long as the 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 Agreement, (A) “Competitive Activities” shall mean owning any material interest in (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 mean all non-cost bearing oil and gas properties, mineral properties, mineral servitudes and/or mineral rights of 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 acquire any of the foregoing and (C) “Restricted Period” means the period beginning on the Executive’s last day of employment with the Company and ending on the first anniversary thereof.
Appears in 1 contract
Noncompetition. The Executive acknowledges that (a) Except as otherwise explicitly permitted in Section 7.4(b), from the Effective Time and continuing until the [*] anniversary of the Closing Date (the “Noncompete Period”), neither Seller nor any of its Affiliates, directly or indirectly through any licensee thereof, shall (i) the Executive performs services of a unique nature for the Company that are irreplaceableengage in any Seller Competitive Activity, and that the Executive’s performance of such services to a competing business will result in irreparable harm to the Company, or (ii) cause or actively assist any other Person to engage in any Seller Competitive Activity. Except as otherwise explicitly permitted in Section 7.4(b), during the Executive has had and will continue 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 Person to have access to Confidential Informationengage in any Purchaser Competitive Activity.
(b) If, whichduring the Noncompete Period, if disclosed, would unfairly and inappropriately assist in competition against the Company Seller or any of its affiliatesAffiliates acquires an Entity that engages in any Seller Competitive Activity, (iii) in the course or all or substantially all of the Executive’s employment by assets of an Entity that engages in any Seller Competitive Activity and such assets include a competitorSeller Competitive Product, the Executive would inevitably use Seller or disclose such Confidential Information, (iv) the Company and its affiliates Affiliate shall 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 affiliatesacquisition date in which to divest itself of such Seller Competitive Product or to otherwise cease such Seller Competitive Activity, and (viSeller shall not be in breach of Section 7.4(a) if it or the Executive has generated and will continue to generate goodwill for Affiliate, as the Company and its affiliates in the course of the Executive’s employmentcase may be, so divests such Seller Competitive Product or ceases such Seller Competitive Activity within such [*] period. AccordinglyIf, during the Executive’s employment hereunder 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 period of twelve (12) months thereafter (the “Restricted Period”)sufficient remedy, the Executive agrees Parties agree that the Executive Purchaser or Seller, as applicable, will notbe entitled to seek specific performance, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwisetemporary and permanent injunctive relief, and whether 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 compensationviolation of the restrictions of this Section 7.4. The Parties agree that Purchaser or Seller, as applicable, shall have the right to seek relief for any violation or threatened violation of this Section 7.4 by Seller or any of its Affiliates or Purchaser or any of its Affiliates, 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 shall the ownership by Seller (or an Affiliate thereof) or render services to any person, firm, corporation Purchaser (or other entity, in whatever form, engaged in the business an Affiliate thereof) 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from being a passive owner of not more less than one five percent (15%) of the equity securities of a publicly publicly-traded corporation engaged in company constitute a business that is in competition with the Company Seller Competitive Activity or any of its subsidiaries or affiliatesa Purchaser Competitive Activity, so long as the Executive has no active participation in the business of such corporationapplicable.
Appears in 1 contract
Noncompetition. The Executive acknowledges that (i) the Executive performs services of a unique nature for the Company that are irreplaceable, and that the Executive’s '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 affiliatessubsidiaries, (iii) in the course of the Executive’s 's employment by a competitor, the Executive would inevitably use or disclose such Confidential Information, (iv) the Company and its affiliates subsidiaries 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 affiliatessubsidiaries, and (vi) the Executive has generated and will continue to generate goodwill for the Company and its affiliates subsidiaries in the course of the Executive’s 's employment. Accordingly, during the Executive’s employment hereunder Employment Term and for a period of twelve one (121) months thereafter (the “Restricted Period”)year thereafter, the Executive agrees that the Executive will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or other entity, in whatever form, engaged in competition with the Company or any of its subsidiaries or in any other material business in which the Company or any of international its subsidiaries is engaged on the date of termination or domestic maritime transport of petroleum in which they have actively planned, on or petroleum-based productsprior to such date, including but not limited to crude oil and refined petroleum products (the “Business”)be engaged in on or after such date, in each case in any locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Termor plans to conduct business. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from being a passive owner of not more than one two percent (12%) of the equity securities of a publicly traded corporation engaged in a business that is in competition with the Company or any of its subsidiaries or affiliatessubsidiaries, so long as the 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 policies of any entity or person, whether through ownership of voting securities, contract or otherwise, and "controlled" and "controlling" shall have correlative meanings.
Appears in 1 contract
Samples: Employment Agreement (Holley Inc.)
Noncompetition. The Executive acknowledges that (i) the Executive performs services of a unique nature for Employee and the Company recognize that are irreplaceableEmployee's duties will entail the receipt of trade secrets and confidential information, which include not only information concerning the Company's current operations, procedures, suppliers and other contacts, but also its short-range and long-range plans, 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 trade secrets and will continue to confidential information may 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 been developed by a competitor, the Executive would inevitably use or disclose such Confidential Information, (iv) the Company and its affiliates have Affiliates at substantial relationships with their customers cost and the Executive has had constitute valuable 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 unique property of the Executive’s employmentCompany. Accordingly, during the Executive’s employment hereunder and for a period of twelve (12) months thereafter (the “Restricted Period”), the Executive agrees Employee acknowledges that the Executive will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or 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 locale of any country (and including, foregoing makes it reasonably necessary for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as protection of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from being a passive owner of Company's business interests that Employee not more than one percent (1%) of the equity securities of a publicly traded corporation engaged in a business that is in competition compete with the Company or any of its subsidiaries Affiliates during the term of this Agreement and for a reasonable and limited period thereafter. Therefore, during the term of this Agreement and for two years after Employee's termination of employment, Employee (a) shall not have any investment in a Competing Business other than a DE MINIMIS investment or affiliates(b) shall not render personal services to any such Competing Business in any manner, so long including, without limitation, as owner, partner, director, trustee, officer, employee, consultant or advisor thereof. For purposes of the Executive has preceding sentence, 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 Company shall have no active participation further obligations to Employee pursuant to this Agreement and may recover from Employee all such damages to which it may be entitled at law or in equity. In addition, Employee acknowledges that any such breach is likely to result in immediate and irreparable harm to the business Company for which money damages are likely to be inadequate. Accordingly, Employee consents to injunctive and other appropriate equitable relief that the Company may seek to protect the Company's rights under this Agreement. Such relief 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 such corporationthe Company. Employee acknowledges good and sufficient consideration for the noncompetition and nonsolicitation covenants of this Section.
Appears in 1 contract
Noncompetition. The Executive acknowledges Employee agrees that (i) the Executive performs services of a unique nature for the Company that are 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 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 term of his or her employment hereunder with Employer, and for a period of twelve (12) months thereafter (the “Restricted "Post-Employment Period”") following the termination of such employment (except as provided below), Employee shall not (a) solicit, attempt to divert or divert the Executive agrees that the Executive will notbusiness of any customer of Employer; or (b) engage in any activity, directly or indirectly, own, manage, operate, control, be employed by indirectly (whether as an employee, owner, consultant, independent contractor agent or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or 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 locale involving: (i) the provision of any country program management and/or network deployment services (and including, for the avoidance of doubtwithout limitation, shipping through international waters) in which site acquisition, construction, or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from being a passive owner of not more than one percent (1%construction management services) of the equity securities type generally offered by Employer, (ii) the provision of a publicly traded corporation engaged 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 a business 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 his employment is in competition with terminated by the Company or any other than for "cause," as that term is defined in Section 1.2 of its subsidiaries or affiliatesthat certain Redemption Agreement between Koll Telecommunication Services, L.L.C., Castle Rock Telecommunicatxxxx Co., L.L.C., and LCC International, Inc., dated as of June 29, 1998, and (c) 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 Period so long as the Executive has no active participation Employer continues to pay Employee's salary and benefits after the Employee ceases to be employed by the Employer; provided, however, that in the business event Employer should elect to discontinue paying Employee's salary and benefits pursuant to this clause (c), Employer shall give Employee notice of such corporationdiscontinuance no later than sixty days prior to the effective time of such discontinuance.
Appears in 1 contract
Samples: Employee Agreement on Ideas, Inventions and Confidential Information (LCC International Inc)
Noncompetition. The Executive acknowledges that (i) the Executive performs services of a unique nature for the Company that are 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 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 for a period of twelve three (123) months thereafter (the “Restricted Period”)thereafter, the Executive agrees that the Executive will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 subsidiaries or affiliates, so long as the Executive has no active participation in the business of such corporation.
Appears in 1 contract
Noncompetition. The Executive acknowledges that (i) In order to induce Buyer to enter into this Agreement, to ensure Buyer of the Executive performs services full benefit of a unique nature for the Company that are irreplaceablesale and transfer of the Shares hereunder, and that to enhance the Executive’s performance earnings of such services to a competing business will result Buyer in irreparable harm to the Companyfuture years, (ii) the Executive has had Seller undertakes 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. Accordinglyagrees that, during the Executive’s employment hereunder and for a three-year period beginning on the Closing Date, without the prior written consent of twelve Buyer:
(12a) months thereafter (the “Restricted Period”), the Executive agrees that the Executive will notNeither Seller nor any Affiliate of Seller shall, directly or indirectly, own, manage, operate, market, finance, join, control, be employed by or participate in the ownership, management, operation, marketing, financing, or control of any person or entity which engages in the transshipment (whether as an employeenot 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 150,000 deadweight tons which will then carry the crude oil to destination ports (hereinafter "Lightering Services"); provided, consultanthowever, independent contractor or otherwisethat the foregoing shall not prohibit Seller, and whether or not for compensation) or render services to any personcombined with its Affiliates, firm, corporation or other entityfrom owning, in whatever formthe aggregate, engaged securities not in the business excess 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 locale 5% of any country (and including, for the avoidance class of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 company if such class of securities is in competition registered with the Company 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 any of its subsidiaries Affiliates from engaging in salvage or affiliatesother emergency response work.
(b) Neither Seller nor any Affiliate of Seller shall, so long as directly or indirectly, persuade or attempt to persuade any customer or prospective customer of Petrolink or any Subsidiary of Petrolink (i) not to contract with or continue to contract with Petrolink or any such Subsidiary for the Executive has no active participation provision of Lightering Services or (ii) to acquire Lightering Services from a person or entity other than Petrolink or any such Subsidiary;
(c) Neither Seller nor any Affiliate of Seller shall, directly or indirectly, without the prior consent of Buyer, persuade or attempt to persuade any employee or independent contractor of Petrolink or any of its Subsidiaries, to leave Petrolink's or 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 this Section 9.4 shall be interpreted to prevent, preclude or in any way limit Seller pursuing and performing Lightering Services, or any other business, currently reserved for U.S.-flag vessels under the business U.S. Xxxxx Act and activities directly related to and in support of such corporationcurrent Xxxxx Act work even if the limits or extent of such Xxxxx Act reservation may hereafter change.
Appears in 1 contract
Noncompetition. (a) For the 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 Agreement pursuant to Section 8.6, the obligations of Seller under this Section 6.10 shall terminate.
(b) The Executive acknowledges restrictions set forth in this Section 6.10 shall not be construed to prohibit or restrict Seller or its Affiliates from acquiring any Person or business that engages in the Restricted Activities, provided that (i) the Executive performs services engagement in such Restricted Activities do not constitute the principal part of a unique nature for the Company that are irreplaceableactivities of the Person or business to be acquired (based on total revenues expressed in United States dollars or calculated in United States dollars utilizing the relevant and then applicable current foreign exchange rate, and that the Executive’s performance of all sales of such services to a competing Person or business will result in irreparable harm to during the Company, consecutive four (4) full calendar quarters immediately preceding the Effective Date of acquisition of such Person or business) or (ii) if the Executive has had Restricted Activities constitute in excess of [***] of the revenues of the Person or business acquired, Seller shall (1) promptly provide written notice to Purchaser after its acquisition of such Person or business and will continue (2) use its commercially reasonable efforts to have access to Confidential Information, which, if disclosed, would unfairly and inappropriately assist in competition against divest that portion of the Company Person or any of its affiliates, (iii) business that engages 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 for a period of Restricted Activities within twelve (12) months thereafter after its acquisition of such Person or business.
(c) Notwithstanding this Section 6.10, if Article 2 (License) is terminated before the “Restricted Period”[***] anniversary of the Effective Date, Seller’s obligations set forth in this Section 6.10 shall be immediately terminated and of no further force and effect.
(d) Notwithstanding anything to the contrary in this Agreement (or the Transaction Documents), the Executive agrees that the Executive will not, directly or indirectly, own, manage, operate, control, be employed by this Section 6.10 shall not apply (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensationi) or render services to any person, firm, corporation business or other entity, in whatever form, engaged in the business operations 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 Seller or any of its Affiliates which are transferred to any third party after the date hereof, (ii) any subsidiaries of Seller the stock of which is transferred to any third party after the date hereof, (iii) any Affiliate of Seller who becomes an Affiliate as a result of a change in control of Seller or affiliates(iv) any acquisition of securities by Seller’s (or any of Seller’s Affiliate’s) pension trust or similar employee benefit plan investment vehicle, so long provided that any securities acquired shall be held for investment purposes only and such benefit plans comply with the Employee Retirement Income Security Act of 1974 requirements as to the Executive has no active participation in the business independence of such corporationinvestment decisions.
Appears in 1 contract
Samples: Asset Purchase and License Agreement (Innovative Solutions & Support Inc)
Noncompetition. 13.1 The Executive Officer acknowledges that (i) that, during the Executive performs services course of a unique nature for the Company that are irreplaceablehis employment hereunder, and that the Executive’s performance of such services to a competing business he will result in irreparable harm to the Company, (ii) the Executive has had and will continue to have access to Confidential Informationthe 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 disclosednot directly disclosed to a competitor of the Companies, would unfairly give a competitor significant and inappropriately assist in competition against unfair advantages over the Company or any of its affiliates, (iii) Companies if made available to it through the Officer’s employment.
13.2 The Officer acknowledges that SJI is engaged in the course business of providing services for the Executive’s employment 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 a competitorthe Companies, 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 Officer 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. Accordinglynot, during the Executive’s employment hereunder and term of this Agreement, or for a period of twelve one (121) months year thereafter (collectively, “the “Restricted Noncompetition Period”), the Executive agrees that the Executive will not, directly or indirectly, indirectly own, manage, operate, controljoin, control or participate in the ownership, management, operation or control of, or be employed by, any business corporation, proprietorship, partnership or other entity which competes with or is engaged in any 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 (whether as an employee, consultant, i) induce or attempt to induce any employee or independent contractor of the Companies to leave the employ of, or otherwiseterminate or adversely affect the contractual relationship with, the Companies, (ii) hire or affirmatively seek any business affiliation with any person who was an employee of the Companies within six months after such person ceased to be an employee of the Companies, or (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 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 areas where the Companies engage or propose to engage in business or which the Companies, at the termination of the Officer’s employment hereunder have defined as their market territory, but shall not apply if the Company is or the Companies are, and whether after thirty days’ written notice to the Companies thereof continue to be, in default of its or their obligation to make any of the payments they are then required to make to the Officer and the Officer is not for compensation) or render services in default in the performance of his obligations.
13.6 If the provisions of this Section 13 should be adjudicated to any personexceed the time, firm, corporation geographic or 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 limitations permitted by applicable law in any locale jurisdiction, then such provisions shall 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 pertinent Sections of this Agreement to, any country (and including, for the avoidance of doubt, shipping through international waters) in which or from entity which the Company conducts business as of believes may offer or has offered employment to the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 subsidiaries or affiliates, so long as the Executive has no active participation in the business of such corporationOfficer.
Appears in 1 contract
Samples: Officer Employment Agreement (South Jersey Industries Inc)
Noncompetition. The Executive Employee acknowledges and agrees that Employee will acquire Proprietary Information, as defined in Section 1.2 of the Employee Proprietary Information & Inventions Agreement, attached hereto as Exhibit A, concerning the Business (as defined below) as the result of Employee's employment. Employee further acknowledges that (i) the Executive performs services of a unique nature for Business is very competitive and that competition by Employee in this Business during Employee's employment, or after Employee's employment terminates, would severely injure the Company that are irreplaceable, and/or CUseeMe and that their respective Affiliates (as defined below). During the Executive’s performance period which commences on the Effective Date and continues during Employee's employment and terminates one (1) year following the last day 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 Employee's employment with 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 for a period of twelve (12) months thereafter Affiliates (the “Restricted Period”"RESTRICTED PERIOD"), the Executive agrees that the Executive will whether termination of employment is voluntary or involuntary, Employee shall not, directly or indirectlyindirectly (including without limitation, through any Affiliate of Employee), be employed by, own, manage, operate, controlcontrol or otherwise engage or participate in, or be employed by (whether connected as an employeea partner, creditor, guarantor, advisor, member of the board of directors of, employee of or consultant, independent contractor proprietor, director or otherwise, and whether in any company or not for compensation) business, or render services to any persondivision, firmgroup, corporation or other entitysubset thereof, in whatever form, developing or engaged in a business competitive with 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 Business (the “Business”), in each case in any locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from being other than a passive owner of investment, not more than exceeding one percent (1%) of the equity securities of outstanding beneficial ownership, in a publicly held and traded corporation engaged company). The "BUSINESS," as used herein, means the design, manufacture or sale, or assistance in a business that is in competition with the Company design, manufacture or sale, of products or services which are similar to products or services which the Company, CUseeMe or any of its subsidiaries their respective Affiliates at any time after the Effective Date design, manufacture or affiliatessell currently and during the Restricted Period. Similar products may include, so long as the Executive has no active participation in the business of such corporationwithout limitation, rich media communications solutions, video networking hardware, software or services, interactive voice and visual communications software.
Appears in 1 contract
Samples: Employment and Non Competition Agreement (First Virtual Communications Inc)
Noncompetition. The (a) Executive acknowledges that (i) the Executive performs services of a unique nature for the Company that are 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 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 his relationship with Comdial and its affiliates have substantial relationships with their customers and the Executive has had and will continue to have give him access to these customers, (v) valuable confidential and proprietary information and expertise not generally known in 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 industry in which Comdial and its affiliates in are engaged (including information conceived, originated, discovered or developed by Executive) relating to the course 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 Executive’s employmentaffairs 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 Agreement). AccordinglyIf used to the benefit of a company engaging in a business similar to the Business, such information would prejudice the interests of Comdial.
(b) In view of the foregoing, as a material inducement to Comdial to enter into this Agreement, Executive hereby agrees that neither Executive nor any entity controlled by or otherwise affiliated with Executive shall, during the Executive’s employment hereunder Employment Term and for a period thereafter during thePost Employment Period (defined in Section 7(c) of twelve (12) months thereafter (the “Restricted Period”this Agreement), the except for duties to be performed by Executive agrees that the Executive will notas an employee of Comdial, in any manner, directly or indirectly, own, manage, operate, control, be employed by (whether as an employeeby, consultantconsult with, independent contractor participate in or otherwisebe connected in any manner with the ownership, and whether management, operation or not for compensation) or render services to control of any personsole proprietorship, firmpartnership, corporation or other entity, in whatever form, engaged entity (A) which competes with Comdial or its affiliates in the business development, manufacture or sale of international (1) any product sold or domestic maritime transport service rendered by Comdial or any of petroleum its affiliates as of the date the Employment Term is terminated, or petroleum-based products, including but not limited (2) any product in active development by Comdial prior to crude oil and refined petroleum products the date on which the Employment Term is terminated (the “Business”), active development of any product to be established by verifiable dollars being spent in each case such product's development) in any locale 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 any such person to purchase 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) from owning, solely for passive investment, less than five percent (5%) of the stock of any country entity registered on a recognized stock exchange, or (ii) from engaging in any business activity if Executive's employment is terminated by Comdial prior to the expiration of 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 including, for the avoidance term of doubtany period during which Executive is in violation of any such covenant.
(c) For purposes of this Section 7, shipping through international waters) in which or the term "Post Employment Period" shall mean a period of time extending from which the Company conducts business as of the end of the Employment Term. Notwithstanding Term for the foregoingnumber of years set forth below, nothing herein shall prohibit depending on the Executive from being a passive owner of not more than one percent (1%) length of the equity securities Employment Term: Length of a publicly traded corporation engaged in a business that is in competition with the Company or any of its subsidiaries or affiliates, so long as the Executive has no active participation in the business of such corporation.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. A. The Executive acknowledges that (i) the Executive performs services agrees that, except in accordance with his duties under this Agreement on behalf of a unique nature for the Company that are irreplaceable, and that the Executive’s performance of such services to a competing business will result in irreparable harm to the Company, (ii) he will not during the Executive has had and will continue term of this 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 business of distributing, selling or otherwise trading in products or services which are competitive to have access to Confidential Informationany products or services distributed, which, if disclosed, would unfairly and inappropriately assist sold or otherwise traded in competition against by the Company or any of its affiliates, (iii) in subsidiaries during the course term of the Executive’s 's employment with the Company, or which are competitive to any products or services being actively developed, with the bona fide intent to market same, by a competitor, the Executive would inevitably use or disclose such Confidential Information, (iv) the Company and or any of its affiliates have substantial relationships with their customers and subsidiaries during 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 term of the Executive’s employment. Accordingly, during 's employment with the Executive’s employment hereunder and for a period of twelve (12) months thereafter (the “Restricted Period”)Company; In addition, the Executive agrees that for a period of two years after the end of the term of this Agreement (unless the Company breaches this Agreement by failing to pay to the Executive will notall sums due him under the terms hereof, 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 or through or in conjunction with one or more members of his or his spouse's family or through any trust or other contractual arrangement, a greater than five percent (5%) interest in, or otherwise control either directly or indirectly, ownany partnership, managecorporation, operateor other entity which distributes, controlsells, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services otherwise trades in products which are competitive to any personproducts or services being developed, firmdistributed, corporation sold, or other entityotherwise traded in by the Company or any of its subsidiaries, in whatever formduring the term of this Agreement, engaged in or being actively developed by the business Company or any of international or domestic maritime transport its subsidiaries during the term of petroleum or petroleum-based products, including but not limited this Agreement with the Company with a bona fide intent to crude oil and refined petroleum products (the “Business”), in each case in any locale of any country (and includingmarket same. Executive further agrees, for the avoidance of doubtsuch two-year period following termination, shipping through international waters) in which to refrain from directly or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoingindirectly soliciting Company's vendors, nothing herein shall prohibit customers or employees, except that the Executive from being a passive owner of not more than one percent (1%) of may solicit the equity securities of a publicly traded corporation engaged Company's vendors or customers in connection with a business that is in competition does not compete with the Company or any of its subsidiaries subsidiaries.
B. The Executive hereby agrees that damages and any other remedy available at law would be inadequate to redress or affiliatesremedy any loss or damage suffered by the Company upon any breach of the terms of this Section 15 by the Executive, so long as and the Executive has no active participation therefore agrees that the Company, in addition to recovering on any claim for damages or obtaining any other remedy available at law, also may enforce the business terms of such corporationthis section 15 by injunction or specific performance, and may obtain any other appropriate remedy available in equity.
Appears in 1 contract
Noncompetition. The Executive acknowledges that (ia) At any time during the Executive performs services period of a unique nature his employment hereunder and for an additional period of two (2) years thereafter (such additional two-year period is hereinafter referred to as the "Non-Compete Period"), the Employee will not reveal, divulge or make known to any individual, partnership, joint venture, corporation or other business entity (other than the Bank or its affiliates) or use for the Company that are irreplaceableEmployee's own account any customer lists, and that trade secrets, formulae or any secret or any confidential information of any kind ("Protected Information") used by 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 Bank 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 commonly controlled affiliates in the course conduct of the Executive’s employment. AccordinglyBank's business and made known to the Employee by reason of the Employee's employment with the Bank or any of its affiliates (whether or not with the knowledge and permission of the Bank and whether or not developed, devised, or otherwise created in whole or in part by the efforts of the Employee); provided, that Protected Information shall not include information that shall become known to the public or the trade without violation of this Section 6(a); and provided, further, that the Employee shall not violate this Section 6
(a) if Protected Information is disclosed by the Employee at the direction of the Bank in connection with the performance of the Employee's duties or if the Employee is required to provide Protected Information in any legal proceeding or by order of any court.
(b) During the period of his employment with the Bank hereunder and during the Executive’s employment hereunder and for a period of twelve (12) months thereafter (the “Restricted Non-Compete Period”), the Executive agrees that the Executive Employee will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or other entity, in whatever form, engaged engage in the business of international of, or domestic maritime transport of petroleum own or petroleum-based products, including but not limited to crude oil and refined petroleum products control an interest in (the “Business”), in each case in any locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business except as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from being a passive owner of not more investor owning less than one two percent (12%) of the equity securities of a publicly traded owned company), or act as director, officer or employee of, or consultant to, any individual, partnership, joint venture, corporation or other business entity known to the Employee to be directly or indirectly engaged in banking in any location within a business 10 mile radius of any branch office of the Bank located in New Jersey. The time period during which the restrictions set forth in this paragraph apply shall be extended by the length of time during which the Employee violates these restrictions in any respect.
(c) The Employee agrees that is in competition with during the Company period of his employment hereunder and during the Non-Compete Period, the Employee shall not knowingly employ or solicit, encourage or induce any person who at any time within one year prior to the Employee's termination of employment shall have been an employee of the Bank or any of its subsidiaries or commonly controlled affiliates, so long as to become employed by or associated with any individual, partnership, joint venture, corporation or other business entity other than the Executive has no active participation in Bank, and the business Employee shall not knowingly approach any such employee for such purpose or authorize or knowingly approve the taking of such actions by any other individual, partnership, joint venture, corporation, or other business entity or knowingly assist any such individual, partnership, joint venture, corporation or other business entity in taking such action.
(d) In consideration of his duties and obligations hereunder, the Bank shall pay to the Employee the amount of $350,000 on the first day of the Non-Compete Period.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Staten Island Bancorp Inc)
Noncompetition. The Executive acknowledges (a) Employee agrees that (i) during the Executive performs services Term of a unique nature for this Agreement and, upon termination of Employee's employment by the Company that are 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 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 for a period of twelve three (123) months thereafter years thereafter, he shall not:
(i) Call upon, solicit, divert, take away or attempt to call upon, solicit, divert or take away any existing (or those existing within one (1) year prior to that time) customers, suppliers, businesses, or accounts of the Company (including the subsidiaries thereof) in connection with any business substantially similar to the Business;
(ii) call upon, hire, attempt to hire, contact or solicit with respect to hiring (for Employee or on behalf of another) any person who is, at that time, or who has been within one (1) year prior to that time, an employee of the Company (including the subsidiaries thereof) in a managerial or sales capacity, provided that Employee shall be permitted to call upon and hire any member of his immediate family;
(iii) Lend credit, money or reputation for the purpose of establishing or operating a business substantially similar to the Business in the territory defined as 100 miles in and around the Company's and its affiliates' operations (the “Restricted Period”"Territory"), ;
(iv) Do any act that Employee knew or reasonably should have known might directly injure the Executive agrees that the Executive will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or 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 Company in any locale material respect or that might divert customers, suppliers or employees from the Business; and
(v) Without limiting the generality of the foregoing provisions, conduct a business substantially similar to the Business under the name "SOURCECORP, Incorporated" or any country (other trade names, trademarks or service marks heretofore used by the Company or its affiliates. In the course of Employee's employment with the Company, Employee will become exposed to certain of the Company's confidential information and includingbusiness relationships, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Termabove covenants are designed to protect. Notwithstanding the foregoing, nothing herein shall prohibit the Executive The covenants in subsections (i) through (v) are intended to restrict Employee from being a passive owner of not more than one percent (1%) of the equity securities of a publicly traded corporation engaged competing in a business that is in competition any manner with the Company or any of its subsidiaries or affiliates, so long as the Executive has no active participation Business in the business activities that have heretofore been carried on by the Company or its affiliates. The obligations set forth in subsections (i) through (v) above shall apply to actions by Employee, through any form of ownership, and whether as principal, officer, director, agent, employee, employer, consultant, stockholder 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 Employee from being the holder of up to 5.0% in the aggregate of any class of securities of any corporation engaged in the activities described in subsection (i) through (v) above, provided that such corporationsecurities are listed on a national securities exchange or reported on the Nasdaq National Market.
Appears in 1 contract
Noncompetition. The Executive (a) Each Seller acknowledges and recognizes that the Business has been conducted by Sellers, and substantial sales of its products have been made, throughout the world, and further acknowledges and recognizes the highly competitive nature of the industry in which the Business is involved. Accordingly, in consideration of the premises contained herein and the consideration to be received hereunder, and in consideration and as an inducement to Buyer to consummate the Transactions, Sellers shall not from and after the Closing until the fifth anniversary of the Closing Date (A) directly or indirectly engage, whether or not such engagement shall be as a partner, stockholder, Affiliate or other participant, in any Competitive Business, or represent in any way any Competitive Business, whether or not such engagement or representation shall be for profit (and including the license of the MagneTek xxxx in connection with a Competitive Business), or (B) induce any employee of Buyer or the Business to terminate his employment with Buyer. As used herein, "Competitive Business" shall mean any business involving the sale of any of the products described in Schedule 6.6 ("Restricted Motors") in any city or county in any state of the United States or anywhere outside the United States. Anything in this Section 6.6 to the contrary notwithstanding, the acquisition by any Seller of any Person, less than 10% of the gross revenues of which are derived in a Competitive Business, shall not constitute a breach of this Section 6.6 if such Competitive Business of such Person is sold or otherwise disposed of or discontinued within the year following such acquisition. In addition, nothing in this Agreement shall prohibit Sellers from (i) acquiring no more than 5%, in the Executive performs services case of a unique nature for the Company that are irreplaceableprivately held Person, and that no more than 5%, in case of a Person whose securities are actively traded in any securities market worldwide, of the Executive’s performance securities of such services to any class of a competing business will result Person engaged in irreparable harm to the Company, a Competitive Business or (ii) selling any Restricted Motor in combination with any drive product. In addition, the Executive has had provisions of this Section 6.6 will automatically expire and become null and void in the event of a change of control of MagneTek. For purposes of this Section 6.6, a change of control of MagneTek will be deemed to have occurred if, as a result of one or a series of related transactions, Persons beneficially owning at least 51% of MagneTek's voting stock prior to the first such transaction cease to continue to have access beneficially own such voting stock (directly or through one or more holding companies), it being understood that this provision is intended to Confidential Information, which, if disclosed, would unfairly and inappropriately assist apply to circumstances in competition against the Company which a third Person acquires or any succeeds to ownership or control of its affiliates, (iii) in the course substantially all of the Executive’s employment by assets or business of MagneTek as constituted immediately prior to such acquisition or succession. In the event of a competitorchange of control, 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 successor 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 for a period of twelve (12) months thereafter (the “Restricted Period”), the Executive agrees that the Executive will not, directly or indirectly, own, manage, operate, control, MagneTek shall be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or 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 locale of any country (and includingbound, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as remainder of the end term of this Section 6.6, not to use the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from being a passive owner of not more than one percent (1%) of the equity securities of a publicly traded corporation engaged MagneTek xxxx in a business that is in competition connection with the Company or sale of any of its subsidiaries or affiliates, so long as the Executive has no active participation in the business of such corporationRestricted Motors.
Appears in 1 contract
Noncompetition. The Executive acknowledges that During the Term (ias hereafter defined) except with -------------- the Executive performs services of a unique nature for the Company that are irreplaceableGen-X Companies' prior written consent, 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 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 for a period of twelve (12) months thereafter (the “Restricted Period”), the Executive agrees that the Executive will notneither Covenantor shall, directly or indirectly, in any capacity, at any location where either of the Gen-X Companies currently conducts or proposes to conduct business (so long as such Covenantor is aware of such proposal) as of the date hereof (the "Territory"):
(a) communicate with or solicit any Person who is or during the one-year period prior to the date hereof was or during the Term becomes, a customer, employee, salesman, agent or representative of, or a consultant to, either of the Gen-X Companies in any manner which interferes or might interfere with such Person's relationship with either of the Gen-X Companies, or in an effort to obtain any such Person as a customer, employee, salesman, agent or representative of, or a consultant to, any other Person that conducts a business competitive with or similar to the action sports and off-price sporting goods business currently conducted by the Gen-X Companies (which off-price sporting goods business consists of the buying of closeout sporting goods and apparel inventory from retailers and manufacturers and the reselling of such inventory to other retailers); or
(b) establish, own, manage, operate, finance or control, or directly or indirectly participate in the establishment, ownership, management, operation, financing or control of, or be employed by (whether as an a director, officer, employee, consultantsalesman, independent contractor agent or otherwiserepresentative of, or be a consultant to, any Person that conducts a business competitive with the action sports and whether off-price sporting goods business currently conducted by the Gen-X Companies. Notwithstanding anything to the contrary contained herein, neither Covenantor shall be prohibited or not for compensationrestricted from (i) or render services to any persondesigning, firmdeveloping and/or operating web sites for, corporation (ii) providing fulfillment or other entityservices or goods in connection with, (iii) procuring goods in whatever formconnection with, engaged in or (iv) offering for sale and/or selling off-price sporting goods over the business internet either on behalf 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 itself or any of its subsidiaries customers or affiliates, so long as the Executive others with which such Covenantor has no active participation in the business of such corporationa contractual relationship.
Appears in 1 contract
Noncompetition. The Executive acknowledges that (i) Subject to the Executive performs services of a unique nature for the Company that are irreplaceableClosing, and that as an inducement to Buyer and NPCC to execute this Agreement and complete the Executive’s performance transactions contemplated hereby, and in order to preserve the goodwill associated with the Purchased Assets being acquired pursuant to this Agreement, and in addition to and not in limitation of such services any covenants contained in any agreement executed and delivered pursuant to a competing business will result in irreparable harm to the CompanySection 6.1 hereof, (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 Sxxxx hereby covenant 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 agree that for a period of twelve five (125) months thereafter (years from the “Restricted Period”)Closing Date, the Executive agrees that the Executive they will not, directly or indirectly:
(i) engage in, owncontinue in or carry on any Competing Business (as defined below) or is substantially similar to Buyer's business, manageincluding owning or controlling any financial interest in any corporation, operatepartnership, controlfirm or other form of business organization which is so engaged;
(ii) consult with, be employed by (whether as an employeeadvise or assist in any way, consultant, independent contractor or otherwise, and whether or not for compensationconsideration, any corporation, partnership, firm or other business organization which is now or becomes a competitor of Buyer or NPCC in any aspect with respect to the Purchased Assets including, but not limited to, advertising or otherwise endorsing the products of any such Competing Business; soliciting customers or otherwise serving as an intermediary for any such Competing Business; loaning money or rendering any other form of financial assistance to or engaging in any form of business transaction on other than an arm's length basis with any such Competing Business;
(iii) hire, offer to hire, or render services solicit for employment any employee of Buyer or NPCC, without the prior consent of Buyer, until such person has been separated from employment by the Buyer or NPCC for at least 180 days and in the case of Pxxx Xxxxxxx and Cxxxxx Xxxxxx such persons must be separated from employment by the Buyer or NPCC for at least 1 year; or
(iv) engage in any practice the purpose of which is to evade the provisions of this covenant not to compete or to commit any act which adversely affects the Purchased Assets or Assumed Liabilities; provided, however, that the foregoing shall not: (a) prohibit the ownership of securities of corporations which are listed on a national securities exchange or traded in the national over-the-counter market in an amount which shall not exceed 1% of the outstanding shares of any such corporation; (b) apply to the Sunworks contract with PureNERGY Renewables, Ltd., a subsidiary of BELCO Holdings, LTD that is located in Bermuda; (c) prohibit follow-up training and support for the Dealers listed on Exhibit A of the Consulting and Management Agreement dated August 1, 2008 between Buyer, Company and Sxxxx that is performed at no additional cost to such Dealers; or (d) prohibit Company from selling its inventory in existence as of the date of this Agreement or any additional inventory Solar may need to purchase or manufacture to fulfill customer orders placed before the date of this Agreement. The parties agree that the geographic scope of this covenant not to compete shall extend throughout the United States. The parties agree that Buyer may sell, assign or otherwise transfer this covenant not to compete, in whole or in part, to any person, firmcorporation, corporation firm or other entityentity that purchases all or part of Buyer or NPCC. In the event a court of competent jurisdiction determines that the provisions of this covenant not to compete are excessively broad as to duration, geographical 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 whatever formfull force and effect, engaged in and any such over broad provisions shall be deemed, without further action on 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 locale part of any country (person, to be modified, amended and/or limited, but only to the extent necessary to render the same valid and including, for the avoidance of doubt, shipping through international waters) enforceable in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 subsidiaries or affiliates, so long as the Executive has no active participation in the business of such corporationjurisdiction.
Appears in 1 contract
Noncompetition. The Executive acknowledges that (a) Except with the prior written consent of the Company authorized by a resolution adopted by the Board, for the period beginning upon the date hereof and ending on (i) in the event of the termination of the Executive's employment by the Executive performs services of a unique nature for Good Reason pursuant to Section 7(c) or by the Company that are irreplaceablepursuant to Section 7(d) hereof and the Executive is receiving payments from the Company pursuant to Section 8(b) or (d) hereof, and that the Executive’s performance of date on which the last such services to a competing business will result in irreparable harm to the Company, payment is received; or (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 event of the voluntary termination of the Executive’s 's employment by a competitorthe Executive pursuant to Section 7(d) hereof or termination by the Company for Cause, the Executive would inevitably use or disclose such Confidential Information, date which is nine (iv9) 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 months from the Company and its affiliatesTermination Date. Executive shall not directly or indirectly as owner, and (vi) the Executive has generated and will continue to generate goodwill for the Company and its affiliates partner, joint venturer, stockholder, employee, broker, agent, principal, trustee, corporate officer, director, licensor, or in any capacity whatsoever engage in, become substantially financially interested in, employed by or have any connection with, any business engaged principally in the course processing of the Executive’s employment. Accordingly, during the Executive’s employment hereunder and for a period of twelve (12) months thereafter (the “Restricted Period”), the Executive agrees that the Executive will not, directly electronic hotel reservations or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor travel agent commissions or otherwise, and whether providing hotel property system services or not for compensation) providing hotel representation or render marketing services to any person, firm, corporation or 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 locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 where the Company or any of its subsidiaries is then engaged in such business; provided, however, that Executive may own any securities of any corporation which is engaged in such business and is publicly traded stock or affiliates, so long as the Executive has no active participation in the business securities of such corporation.
(b) Executive agrees that for a period of one (1) year following termination of employment with the Company, Executive will not solicit or in any manner encourage employees of the Company, its subsidiaries or parent to leave its employ.
(c) In case one or more of the terms contained in Subsections (a) or (b) of this Section 11 shall for any reason become invalid, illegal, or unenforceable, such invalidity, illegality or unenforceability shall not affect any other terms herein, but such terms shall be deemed deleted and such deletion shall not affect the validity of the other terms of this Section. In addition, if any one or more of the terms contained in Subsections (a) or (b) of this Section shall for any reason be held to be excessively broad with regard to time, duration, geographic scope or activity that term shall be construed in a manner to enable it to be enforced to the extent compatible with applicable law.
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Noncompetition. The Executive Employee acknowledges that (i) the Executive Employee performs services of a unique nature for the Company that are irreplaceable, and that the ExecutiveEmployee’s performance of such services to a competing business will result in irreparable harm to the Company, (ii) the Executive Employee has had and will continue to have access to Confidential Information, 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 ExecutiveEmployee’s employment by a competitor, the Executive Employee would inevitably use or disclose such Confidential Information, (iv) the Company and its affiliates have substantial relationships with their customers and the Executive Employee has had and will continue to have access to these customers, (v) the Executive Employee has received and will receive specialized training from the Company and its affiliates, and (vi) the Executive Employee has generated and will continue to generate goodwill for the Company and its affiliates in the course of the ExecutiveEmployee’s employment. Accordingly, during the ExecutiveEmployee’s employment hereunder and (A) if the 10 Employee’s employment and the Employment Term are terminated by the Company for Cause, by the Employee without Good Reason or as a result of the Employee’s non-extension of the Employment Term as provided in Section 2 hereof, for a period of twelve one (121) year thereafter, or (B) if the Employee’s employment and the Employment Term are terminated by the Company other than for Cause, by the Employee for Good Reason or as a result of the Company’s non-extension of the Employment Term as provided in Section 2 hereof and the Employee was willing and able to remain employed, for a period of six (6) months thereafter (the “Restricted Period”)thereafter, the Executive Employee agrees that the Executive Employee will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to (i) any person, firm, corporation or other entity, in whatever form, with a class of securities listed on a national securities exchange, engaged in the business of international owning and leasing agricultural real estate or domestic maritime transport in any other material business in which the Company or any of petroleum its affiliates is engaged on the termination date or petroleum-based productsin which they have planned, including but not limited on or prior to crude oil and refined petroleum products (the “Business”)such date, to be engaged in each case on or after such date, in any locale of any country (and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as or (ii) any person, firm, corporation or other entity, in whatever form, with assets under management or committed capital in excess of $100,000,000, engaged in the end business of owning and leasing agricultural real estate or in any other material business in which the Employment TermCompany 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, in any locale of any country in which the Company conducts business. Notwithstanding the foregoing, nothing herein shall prohibit the Executive Employee from (i) 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 subsidiaries or affiliates, so long as the Executive Employee has no active participation in the business of such corporationcorporation or (ii) owning, managing, operating, controlling, or being employed by any firm, corporation or other entity in the same capacity in which the Employee was engaged immediately prior to the Termination of the Employee’s employment hereunder, as long as (a) the Board has been apprised of the identity of, and the Employee’s role with, such firm, corporation or other entity and (b) the Board has previously approved the Employee’s role with such firm, corporation or other entity, in the case of both (a) and (b), prior to the Employee’s termination of employment. In addition, the provisions of this Section 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 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 affiliates.
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Noncompetition. The Executive acknowledges (a) In view of Member's importance to the Firm, Member hereby agrees that (i) the Executive performs services Firm would likely suffer significant harm from Member's competing with the Firm for some period of a unique nature for time following the Company that are irreplaceableconsummation of the Merger, and that the Executive’s performance of such services to a competing business will result in irreparable harm at any time prior 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 date of its affiliates, (iii) termination specified in the course notice of termination pursuant to Section 10 hereof (the Executive’s employment by a competitor"Employment Period") and for some time thereafter, the Executive and Member understands that Acquiror would inevitably use or disclose such Confidential Information, (iv) not have agreed to acquire the Company and its affiliates have substantial relationships with their customers business unless Member entered into this Agreement. Moreover, Member recognizes and agrees that 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 business activities of the Executive’s employmentFirm are worldwide and that the restrictions on competition included herein are commensurate in geographic scope with those activities. Accordingly, during the Executive’s employment hereunder and for a period of twelve (12) months thereafter (the “Restricted Period”), the Executive Member hereby agrees that commencing at the Executive time of consummation of the Merger, Member will not, directly without the written consent of Acquiror, until the later of (x) three years following the Effective Time and (y) two years following the date of termination of the Employment Period (such later date is referred to as the "Expiration Date"):
(1) form, or indirectlyacquire a 5% or greater equity ownership (including, ownfor this purpose, managestock options, operatewarrants and other rights, controlwhether or not exercisable), voting or profit participation interest in, any Competitive Enterprise (as defined below) (it being understood that the maintenance by Member of his existing ownership interest in Xxxxxxxx Xxxxxxx & Co., Inc. ("Xxxxxxxx") shall not be employed by deemed to violate the provisions of this Section 6; provided, that Member shall maintain his ownership interest in Xxxxxxxx solely as a passive investment and shall not devote any of Member's time, labor, skill or energies to the business and affairs of Xxxxxxxx); or
(whether 2) associate (including, but not limited to, association as an officer, employee, partner, director, consultant, independent contractor agent or otherwiseadvisor) with any Competitive Enterprise and in connection with such association engage in, and whether or not for compensationdirectly or indirectly manage or supervise personnel engaged in, any activity
(i) which is similar or render services substantially related to any personactivity in which Member was engaged, firmin whole or in part, corporation at the Firm,
(ii) for which Member had direct or indirect managerial or supervisory responsibility at the Firm, or
(iii) which calls for the application of the same or similar specialized knowledge or skills as those utilized by Member in Member's activities with the Firm, at any time during the one-year period immediately prior to the date of termination of Member's employment with the Firm (or, in the case of an action taken during the Employment Period, during the one-year period immediately prior to such action), and, in any such case, irrespective of the purpose of the activity or whether the activity is or was in furtherance of advisory, agency, proprietary or fiduciary business of either the Firm or the Competitive Enterprise. (By way of example only, this provision precludes an information systems professional for the Firm from joining a management or other entityconsulting firm and providing information technology consulting services or advice to any Competitive Enterprise.)
(b) For purposes of this Agreement, a "Competitive Enterprise" is a business enterprise that (1) engages in any activity, or (2) owns or controls a significant interest in any entity that engages in any activity, that, in whatever formeither case, engaged competes anywhere with any activity in which the business Firm is engaged. The activities covered by the previous sentence include, without limitation, financial services such as investment banking, public or private finance, lending, financial advisory services, private investing (for anyone other than Member and members 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”Member's family), in each case in any locale of any country (merchant banking, asset or hedge fund management, insurance or reinsurance underwriting or brokerage, property management, or securities, futures, commodities, energy, derivatives or currency brokerage, sales, market making, lending, custody, clearance, settlement or trading. If Member is employed by the Firm immediately following the Effective Time and including, for the avoidance of doubt, shipping through international waters) in which or from which the Company conducts business as of the end of the Employment Term. Notwithstanding the foregoing, nothing herein shall prohibit 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 Firm terminates Member's employment with the Company or any Firm without Cause, the Firm may only enforce the provisions of its subsidiaries or affiliates, this Section 6 for so long as the Executive Firm continues to pay Member the same base salary (i.e., excluding any incentive, bonus or similar compensation) Member was receiving immediately prior to such termination. In determining whether the Firm has no active participation in paid Member's base salary for any period, the business of such corporationFirm shall receive credit for any payments under any severance, salary continuation or similar plan or arrangement.
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