Noncompetition. (a) The Executive acknowledges that during his employment with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted 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 business of the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice"). (b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 4 contracts
Samples: Employment Agreement (Watford Holdings Ltd.), Employment Agreement (Watford Holdings Ltd.), Employment Agreement (Watford Holdings Ltd.)
Noncompetition. Executive agrees as follows, except in the event of a termination pursuant to Section 5.03, in which event this section is inapplicable:
(a) The Executive acknowledges agrees that during the term of his employment with the Company, neither he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning nor any of his Affiliates (Executive’s Affiliates is defined as any legal entity in which Executive directly or indirectly owns at least a 25% interest or any entity or person which is under the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination control of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted Period"), he will not directly or indirectly own, manage, control, participate in, consult with, render services for or compete with the Company in any manner engage way in any business competing with the business of the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage is engaged in, and that he will not act as an officer, director, employee, consultant, shareholder, lender, or plan to engage agent of any entity which is engaged in such businesses. It any business of the same nature as, or in competition with the businesses in which the Company is now engaged or in which the Company becomes engaged during the term of employment; provided, however, that this Section shall not be considered a violation prohibit Executive or any of this Section 9.01 for his Affiliates from purchasing or holding an aggregate equity interest of up to 10% in any publicly traded business in competition with the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly tradedCompany, so long as Executive and his Affiliates combined do not purchase or hold an aggregate equity interest of more than 10%. Furthermore, Executive agrees that during the Executive has no active participation in term of employment, he will not accept any board of director seat or officer role or undertake any planning for the organization of any business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless activity competitive with the Company notifies (without the approval of the Board of Directors) and Executive in writing no later than ten (10) will not combine or conspire with any other Executives of the Company for the purpose of the organization of any such competitive business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")activity.
(b) Subject In order to Section 12.09, in the event protect the Company provides against the unauthorized use or the disclosure of any confidential information of the Company presently known or hereinafter obtained by Executive with during his employment under this Agreement, Executive agrees that for a period of twelve (12) months following the Noncompetition Noticetermination of this Agreement for any reason, neither Executive nor any of his Affiliates, shall, directly or indirectly, for itself or himself or on behalf of any other corporation, person, firm, partnership, association, or any other entity (whether as an individual, agent, servant, employee, employer, officer, director, shareholder, investor, principal, consultant or in any other capacity):
(i) engage or participate in any business, regardless of where situated, which engages in direct market competition with such businesses being conducted by the Company shall be required to continue to pay during the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery term of the Noncompetition Notice, employment; or
(ii) assist or finance any person or entity in any manner or in any way inconsistent with the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery intents and purposes of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermudathis Agreement.
Appears in 4 contracts
Samples: Employment Agreement (SRM Entertainment, Inc.), Employment Agreement (SRM Entertainment, Inc.), Employment Agreement (SurgePays, Inc.)
Noncompetition. (a) The Executive acknowledges Stockholder agrees that during his for the period of the Stockholder's employment following the Closing with the CompanyJ&J, he hasor any subsidiary thereof, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time for two (i2) during the Employment Period, and (ii) (x) years following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's such employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination regardless of the Executive's circumstances under which such employment is terminated) (the time described in clauses (i) and (ii), collectivelysuch period, the "Restricted Noncompetition Period"), he the Stockholder will not directly have any Relationship (as defined below) with any entity, including but not limited to any corporation, partnership, limited liability company, sole proprietorship or indirectly ownunincorporated business (whether or not for profit) (such entity, manage, control, participate in, consult with, render services for a "Business") in the course of which Relationship the Stockholder engages in or in any manner engage in any assists such Business with respect to the ophthalmic spectacle lens business competing with the (which business of the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(xinclude lens analyzing equipment) (the "Noncompetition NoticeLens Products and Services").
(b) Subject to Section 12.09, in In the event that the Company provides terminates the Executive with the Noncompetition NoticeStockholder's employment without Cause (as defined below), (i) the Company shall be required to (x) continue to pay such Stockholder through the Executive end of the Base Salary for the Restricted Period, paid Noncompetition Period (payable in accordance with the Company's regular pay practices, starting with the first pay date following delivery payroll practices of the Noncompetition Notice, Company) an annual amount equal to the salary that the Stockholder was receiving immediately prior to such termination and (iiy) continue to provide all benefits generally available under employee benefit plans or the practices and policies of the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination (other than stock option or similar plans), determined in accordance with the provisions of employment such plans, practices and policies. "Cause" shall mean (i) Stockholder's conviction of, guilty plea to, or confession of guilt of, a felony, (ii) dishonest or illegal conduct or misconduct or malfeasance by the Stockholder in the performance of services for or on behalf of the Restricted PeriodCompany, and or other conduct detrimental to the business, operations or reputation of the Company, regardless of whether such conduct is within the scope of Stockholder's duty, (iii) failure by the Stockholder to perform his duties, as assigned to him by the President from time to time, provided that such duties are not inconsistent with the Stockholder's current duties, or 2 (iv) violation by the Company shall continue to provide Stockholder of the housing allowance covenants set forth in Section 4.04(e) for this Agreement; provided, however, that "Cause" shall, in no circumstances mean the lesser failure by the Stockholder to relocate in the event the Company relocates its place of the Restricted Period business and the period during which the Executive remains a resident of BermudaStockholder is unable to perform his duties without so relocating.
Appears in 4 contracts
Samples: Noncompetition Agreement (Innotech Inc), Noncompetition Agreement (Innotech Inc), Noncompetition Agreement (Innotech Inc)
Noncompetition. (a) The 7.1 Competitive Activity. Executive acknowledges that shall be deemed to have engaged in "Competitive Activity" if, during his the period commencing on the date hereof and ending on the second anniversary of the date Executive's employment with the CompanyInvestors or its subsidiaries terminates, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for himself or on behalf of any other person, firm, partnership, corporation, or other entity, engages, directly or indirectly, as an executive, agent, representative, consultant, partner, shareholder or holder of any other financial interest, in any business that competes with Investors or its subsidiaries in the line of business Executive is employed in by Investors or its subsidiaries (as applicable), as such business is described in any employment or severance agreement then in effect between Executive and Investors or one of its subsidiaries or, if no such agreement is then in effect, as described on Schedule II attached hereto (a period ending twelve (12) months after the termination of the "Competing Business"), it being understood and agreed that Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses activities shall not satisfy this clause (i) where Executive is employed by a person, firm, partnership, corporation, or other entity engaged in a variety of activities, including the Competing Business, and (ii), collectively, the "Restricted Period"), he will Executive is not directly engaged in or indirectly own, manage, control, participate in, consult with, render services for or in any manner engage in any business competing with the business of the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 responsible for the Competing Business of such entity. Executive to may also, without satisfying clause, (i) be a passive owner of not more than 2% of the outstanding publicly traded stock of any class of a corporation which is publicly traded, Competing Business so long as the Executive has no active participation in the business of such corporation. The terms entity, except to the extent permitted above; or (ii) Executive (A) directly or indirectly through another entity, induces or attempts to induce any employee of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies or its subsidiaries to leave the Executive employ of the Company or its subsidiaries, or in writing no later than ten (10) business days following a Justified Termination any way interfere with the relationship between the Company or any of its intention subsidiaries and any employee thereof, (B) knowingly hires any person who was an employee of the Company or any of its subsidiaries within 180 days prior to enforce the provisions time such employee was hired by Executive, (C) induces or attempts to induce any customer, supplier, licensee or other business relation of Section 9.01(a)(ii)(xthe Company or any of its subsidiaries to cease doing business with the Company or its subsidiaries or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and the Company or any subsidiary or (D) (directly or indirectly acquires or attempts to acquire an interest in any business relating to the "Noncompetition Notice").
(b) Subject business of the Company or any of its subsidiaries and with which the Company or any of its subsidiaries has entertained discussions or has requested and received information relating to Section 12.09, the acquisition of such business by the Company or its subsidiaries in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance one-year period immediately preceding Executive's termination of employment with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 4 contracts
Samples: Unit Subscription Agreement (Michael Foods Inc/New), Unit Subscription Agreement (Michael Foods Inc/New), Unit Subscription Agreement (Michael Foods Inc/New)
Noncompetition. (a) The Executive acknowledges agrees that during he will not engage in Competition (as defined below) while he is employed by the Company. In the event that the Executive engages in Competition within the three-year period immediately following the termination of his employment with the CompanyCompany for any reason, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during his Initial Option shall be immediately forfeited to the Employment Period, extent not previously exercised and (ii) he shall forfeit (x) following a Justified Termination and delivery or, in the case of the Noncompetition Notice by the Company prior payment to the Executive, for a period ending twelve (12shall repay together with interest at the Applicable Federal Rate, determined in accordance with Section 1274(d) months after the termination of the Executive's Internal Revenue Code or any successor provision thereto) a pro rata portion of the severance payment provided for in Section 5(c)(i). Such pro rata portion shall be based upon (x) the number of days remaining between the first day on which the Executive engages in Competition and the third anniversary of his last day of employment and by the Company, divided by (y) 1095. The Company's sole remedy for the breach of this Section following an Unjustified Termination, for a period ending twelve (12) months after the his termination of employment shall be as set forth in the Executive's employment (the time described preceding two sentences. The Executive shall be deemed to be engaging in clauses (i) and (ii), collectively, the "Restricted Period"), Competition" if he will not directly or indirectly ownindirectly, manageowns, controlmanages, participate operates, controls or participates in the ownership, management, operation or control of or is connected as an officer, employee, partner, director, consultant or otherwise with, or has any financial interest in, consult with, render any business engaged in the financial services for or business (a "Competing Business") in any manner engage in any business competing with the business of the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area state in which the Company or its Affiliates engage subsidiaries or plan to engage affiliates now or hereafter operate a commercial banking or other material financial services business which is a material part of such business and is in such businessesmaterial competition with the business conducted by the Company at the time of the termination of his employment with the Company or its subsidiaries or affiliates. It Notwithstanding the foregoing sentence, the Executive shall not be considered deemed to be engaging in Competition under the circumstances described in the foregoing sentence if the Executive (i) does not own or control the Competing Business, (ii) does not serve as a violation of this Section 9.01 director or a consultant to the Competing Business, and (iii) does not have any management or operational responsibility for the Executive to be a passive owner Competing Business in any such state. Ownership for personal investment purposes only of not more less than 2% of the outstanding voting stock of any class of publicly held corporation shall not constitute a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")violation hereof.
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 4 contracts
Samples: Employment Agreement (Datascension Inc), Employment Agreement (Datascension Inc), Employment Agreement (Datascension Inc)
Noncompetition. (ai) The As an inducement to the Company to enter into this Agreement and issue the Shares hereunder, the Executive acknowledges that agrees that, during his (A) his/her period of employment with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (iiB) (x) following a Justified Termination and delivery of in the Noncompetition Notice event that Executive resigns or Executive's employment is terminated by the Company for any reason, during the period which the Company is paying the Executive severance compensation (which shall be at a rate and an amount equal to the Executive's salary and health and other insurance benefits received by the Executive immediately prior to the Termination Date), for a such period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment not to exceed one year (the time described in clauses (i) and (ii), collectively, the "Restricted Noncompete Period"), he will shall not directly or indirectly own, manage, control, participate in, consult with, render services for for, or in any manner engage in in, any business competing directly or indirectly with the business of as now or hereafter conducted by the Company or any of its Affiliates as such businesses exist or Subsidiaries which are in process as logical extensions of the date of terminationCompany's current business, within any geographical metropolitan area in which the Company or any of its Affiliates engage Subsidiaries engages or plan has definitive plans to engage in such businesses. It business; provided, that (x) the Executive shall not be considered a violation precluded from purchasing or holding publicly-traded securities of this Section 9.01 for any such entity so long as the Executive to be a passive owner of not more shall hold less than 2% of the outstanding stock units of any such class of a corporation which is publicly traded, so long as the Executive securities and has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten entity and (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (iy) the Company shall be required to continue to pay have notified the Executive of its agreement to provide such severance compensation (1) in the Base Salary for event of resignation, within five days after the Restricted Termination Date, and (2) in the event of termination, on or before the Termination Date). Notwithstanding anything contained herein to the contrary, the Executive's agreement set forth in clause (B) above shall not apply in the event that the Termination Date occurs after the fifth anniversary of the date of this Agreement.
(ii) During the Noncompete Period, paid the Executive shall not directly or indirectly through another entity (i) induce or attempt to induce any employee of the Company or any of its Subsidiaries to leave the employ of the Company or any of its Subsidiaries, or in accordance any way interfere with the Company's regular pay practices, starting with relationship between the first pay date following delivery Company or any of the Noncompetition Noticeits Subsidiaries and any employee thereof, (ii) hire any person who was an employee of the Company shall be required to pay in a lump sum the or any of its Subsidiaries at any time during Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, employment period except for such employees who have been terminated for at least six months or (iii) induce or attempt to induce any customer, supplier, licensee, franchisor or other business relation of the Executive Company or any of its Subsidiaries to cease doing business with such member, or in any way interfere with the relationship between any such customer, supplier, licensee, franchisor or business relation, on the one hand, and any member of the Company or any of its Subsidiaries, on the other hand.
(iii) The provisions of this Section 5(a) shall continue to receive major medical insurance coverage benefits from the Company's plans in effect survive any termination of this Agreement.
(iv) If, at the time of enforcement of this Section 5(a), a court of competent jurisdiction shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum duration, scope or area reasonable under such termination of employment circumstances shall be substituted for the Restricted Periodstated duration, scope or area and (iv) that such court shall be allowed to revise the Company shall continue restrictions contained herein to provide cover the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period maximum period, scope and the period during which the Executive remains a resident of Bermudaarea permitted by law.
Appears in 4 contracts
Samples: Executive Stock Agreement (Town Sports International Holdings Inc), Executive Stock Agreement (Town Sports International Holdings Inc), Executive Stock Agreement (Town Sports International Holdings Inc)
Noncompetition. (a) The Executive Employee acknowledges that (i) the Employee performs services of a unique nature for the Company that are irreplaceable, and that the Employee’s performance of such services to a competing business will result in irreparable harm to the Company, (ii) the Employee has had and will continue to have access to Confidential Information which, if disclosed, would unfairly and inappropriately assist in competition against the Company or any of its affiliates, (iii) in the course of the Employee’s employment by a competitor, the Employee would inevitably use or disclose such Confidential Information, (iv) the Company and its affiliates have substantial relationships with their customers and the Employee has had and will continue to have access to these customers, (v) the Employee has received and will receive specialized training from the Company and its affiliates, and (vi) the Employee is expected to generate goodwill for the Company and its affiliates in the course of the Employee’s employment. Accordingly, during his the Employee’s employment and for a period of one year thereafter, the Employee agrees that the Employee will not, whether on the Employee’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, perform or attempt to perform Prohibited Services (as defined below) for any Competitive Business (as defined below) anywhere within the Restricted Territory (as defined below). For purposes of this Agreement, “Prohibited Services” are any services that are the same or substantially similar to the services Employee provided to the Company during the last twenty-four (24) months of Employee’s employment with the Company, he hasincluding, and will continue towithout limitation, become familiar with trade secrets and other brokerage or advisory services, or services that require Employee to use or disclose Confidential Information concerning the Company and its Affiliates and their respective predecessorsInformation. For purposes of this Agreement, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at “Competitive Business” means any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described person or entity engaged in clauses (i) and (ii), collectively, the "Restricted 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 business of the Company acquiring, owning, leasing, and/or financing cannabis properties or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area other business in which the Company has engaged or its Affiliates engage or plan have active plans to engage in such businessesduring the last twenty-four (24) months of Employee’s employment with the Company. It Notwithstanding the foregoing, nothing herein shall not be considered a violation of this Section 9.01 for prohibit the Executive to be Employee from (i) being a passive owner of not more than 2% five percent (5%) of the outstanding stock of any class equity securities of a publicly traded corporation which engaged in a business that is publicly tradedin competition with the Company or any of its affiliates, so long as the Executive has Employee provides no active participation Prohibited Services to such corporation or (ii) owning, managing, operating, controlling, or being employed by any firm, corporation or other entity in the business 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 corporation. The terms of Section 9.01(a)(ii)(xfirm, corporation or other entity and (b) shall be of no force or effect unless the Company notifies the Executive Board has previously approved in writing no later than ten the Employee’s role with such firm, corporation or other entity, in the case of both (10a) business days following a Justified Termination and (b), prior to the Employee’s termination of its intention to enforce employment. In addition, the provisions of this Section 9.01(a)(ii)(x10(b) (shall not be violated by the "Noncompetition Notice").
(b) Subject to Section 12.09Employee commencing employment with a subsidiary, division or unit of any entity that engages in the event a business in competition with the Company provides the Executive with the Noncompetition Notice, or any of its affiliates so long as: (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted PeriodEmployee and such subsidiary, paid division or unit does not engage in accordance a business in competition with the Company's regular pay practices, starting with the first pay date following delivery Company or any of the Noncompetition Notice, its affiliates; and (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery Employee informs such entity of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans restrictions contained in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in this Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda10.
Appears in 3 contracts
Samples: Employment Agreement (Freehold Properties, Inc.), Employment Agreement (Freehold Properties, Inc.), Employment Agreement (Freehold Properties, Inc.)
Noncompetition. (a) The Executive acknowledges that agrees that, during his employment with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In additionRestricted Period, the Executive hereby agrees that at any time shall not be employed by, serve as a consultant to, or otherwise assist or directly or indirectly provide services to a Competitor if (i) during the Employment Periodservices that the Executive is to provide to the Competitor are the same as, and (ii) (x) following a Justified Termination and delivery or substantially similar to, any of the Noncompetition Notice by services that the Company Executive provided to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted 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 business of the Company or its Affiliates as the Affiliates, and such businesses exist or services are in process as of the date of termination, within to be provided with respect to any geographical area location in which the Company or its Affiliates engage an Affiliate had material operations during the twelve (12) month period prior to the Termination Date, or plan with respect to engage any location in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies or an Affiliate had devoted material resources to establishing operations during the Executive in writing no later than ten twelve (1012) business days following a Justified month period prior to the Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, Date; or (ii) the trade secrets, Confidential Information, or 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 the Competitor were to obtain access to such secrets or information. For purposes of this paragraph, services provided by others shall be required deemed to pay 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 lump sum material portion of its business is (and during any period in which it intends to enter into business activities that would be) materially competitive in any way with any business in which the Company or any of the Affiliates were engaged during the twelve (12) month period prior to the Executive's Target Bonus then ’s Termination Date (including, without limitation, any business if the Company devoted material resources to entering in effect on such business during such twelve (12) month period), but for purposes of clause (c) above, the first pay date following term “Competitor “ shall be limited to those businesses to which the delivery 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 not, as a stand-alone enterprise, constitute a “Competitor” under the foregoing definition, provided that Executive does not render any services to, or otherwise assist the portion of the Noncompetition Noticebusiness that competes with the Company and its Affiliates. For the avoidance of doubt, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at ’s and Affiliates’ businesses shall include, without limitation, the time lines of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance business set forth in Section 4.04(e) for the lesser 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 Restricted Period Company and the period during which Affiliates or the restrictions with respect to such businesses in the future. Any payments owed to Executive remains a resident at time of Bermudaseparation as described herein shall be contingent upon Executive’s compliance with the post-employment noncompetition provisions.
Appears in 3 contracts
Samples: Employment Agreement (Helius Medical Technologies, Inc.), Employment Agreement (Helius Medical Technologies, Inc.), Employment Agreement (Helius Medical Technologies, Inc.)
Noncompetition. (a) The Executive acknowledges that during his employment with During the CompanyNon-competition Period, he hasthe Sellers shall not, and will continue toshall cause each Seller Affiliate to not, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during engage in, continue in or carry on, directly or indirectly, any business which competes with the Employment Period, and Business as conducted on the Closing Date anywhere throughout the world; or (ii) (x) following a Justified Termination and delivery of participate in the Noncompetition Notice by the Company to the Executivefinancing, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Terminationoperation, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii)management or control of, collectively, the "Restricted Period"), he will not directly or indirectly own, manage, control, participate own any equity interest in, consult withany enterprise, render services for firm, partnership, corporation, entity or in any manner engage in any business competing that competes with the business of Business as conducted on the Company or its Affiliates as such businesses exist or are in process as of Closing Date anywhere throughout the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")world.
(b) Subject to Section 12.09, in During the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance applicable Non-hire Period set forth in Section 4.04(e13.04(g) below, and subject to the terms and conditions of Section 12.03 above, neither Sellers nor their Affiliates will directly or indirectly employ, engage, contract for or solicit the services in any capacity of any Xxxxxxx Polymer Employee, Current Waxdale Employee, Tolling Employee or Non-U.S. Employee, unless Buyer has consented to such relationship. Notwithstanding anything contained in Sections 13.04(a) or (b) above:
(c) the restrictions contained herein shall not apply to the activities of the Sellers (or either one of them) and/or any of their Affiliates under the Toll Manufacturing Agreement, the Joint Development Agreement, the Supply Agreement, or any other agreements or arrangements entered into between Buyer and the Sellers (or either one of them), any of their respective Affiliates, and/or S.C. Xxxxxxx & Son, Inc. and its Affiliates;
(d) each Seller and each Seller Affiliate may make and thereafter maintain a Non-controlling Investment in any business that competes with the Business;
(e) the restrictions contained herein shall not apply to the activities of the Sellers (or either one of them), JohnsonDiversey and/or any of their Affiliates related to use or manufacture of polymers to be used in their respective floorcare businesses, including the use or manufacture of Differentiated Floorcare Polymers or any formulation containing a Differentiated Floorcare Polymer, and/or any activities with respect to Undifferentiated Floorcare Polymers pursuant to license arrangements, and, for the lesser avoidance of doubt, the Restricted restrictions in Section 13.04(a) and (b) do not apply to S.C. Xxxxxxx & Son, Inc. and its Affiliates;
(f) Section 13.04(b) shall not apply to any Non-U.S. Employee if such person’s employment was terminated by Buyer or one of its Affiliates; and
(g) the Non-hire Period shall be equal to the applicable period, if any, identified below:
(i) with respect to Xxxxxxx Polymer Employees, the Non-hire Period shall be equal to a period of eighteen (18) months commencing on the Closing Date.
(ii) with respect to Tolling Employees, the Non-hire Period shall be equal to a period commencing on the Closing and ending eighteen (18) months after the Tolling Employee’s Termination Date.
(iii) with respect to Non-U.S. Employees, the Non-hire Period shall be equal to a period during which of eighteen (18) months commencing on the Executive remains Closing Date. If the final judgment of a resident court of Bermudacompetent jurisdiction determines that the covenant contained in this Section 13.04 is unenforceable because it is overbroad or unreasonable, whether as to geography, duration, scope of activities, or otherwise, such covenant shall be modified to permit enforcement to the maximum extent permissible under applicable Legal Requirements.
Appears in 3 contracts
Samples: Asset and Equity Interest Purchase Agreement (Johnsondiversey Inc), Asset and Equity Interest Purchase Agreement (Johnsondiversey Holdings Inc), Asset and Equity Interest Purchase Agreement (Johnsondiversey Inc)
Noncompetition. (a) The Executive acknowledges that during his employment with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve three (123) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve three (123) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted 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 business of the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum an amount equal to 25% of the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of BermudaBermuda and shall reimburse the Executive for any income taxes incurred by the Executive as a result such housing allowance (including taxes imposed on the reimbursement payment itself).
Appears in 3 contracts
Samples: Employment Agreement (Watford Holdings Ltd.), Employment Agreement (Watford Holdings Ltd.), Employment Agreement (Watford Holdings Ltd.)
Noncompetition. (a) The Executive acknowledges that Following Termination of Employment for any reason other than for Cause or by reason of a voluntary termination by Employee pursuant to Section 4.2(b), during his employment with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning period from the Company and its Affiliates and their respective predecessors, and that his services will be date of special, unique and extraordinary value the Termination of Employment to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery later of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination last day of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after Agreement Term or the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted 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 business of the Company or its Affiliates as such businesses exist or are in process as first anniversary of the date of terminationthe Termination of Employment Employee shall not, within directly or indirectly, (i) Compete in the United States, (ii) solicit any geographical area in which officer or employee of the Company Corporation or any of its Affiliates engage or plan affiliates to engage in any conduct prohibited hereby for Employee or to terminate any existing relationship with the Corporation or such businessesaffiliate or (iii) assist any other person to engage in any activity in any manner prohibited hereby to Employee. It Following Termination of Employment for Cause or by reason of a voluntary termination by Employee pursuant to Section 4.2(b), Employee shall not, directly or indirectly, engage in any of the activities described in (i), (ii) or (iii) of the immediately preceding sentence during the one-year period following the date of the Termination of Employment. In any case where Employee is contemplating an activity described in Section 6.1(a)(i) above, other than an activity described in Section 1.7(ii) or (iii) or an activity described in Section 1.7(i) as it relates to the secondary mortgage market, the Board, upon the request of Employee for a waiver, shall determine in good faith whether Employee’s engaging in the proposed activity would prejudice the interests of the Corporation and shall not be considered unreasonably withhold its consent to such request for a violation of this Section 9.01 for waiver if it determines that the Executive to be a passive owner of proposed activity would not more than 2% prejudice the interests of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")Corporation.
(b) Subject The need to Section 12.09protect the Corporation against Employee’s competition, as well as the nature and scope of such protection, has been carefully considered by the parties hereto in light of the uniqueness of Employee’s talent and his importance to the Corporation. Accordingly, Employee agrees that, in addition to any other relief to which the event Corporation may be entitled, the Company provides the Executive with the Noncompetition Notice, (i) the Company Corporation shall be required entitled to continue to pay seek and obtain injunctive relief (without the Executive the Base Salary requirement of a bond) from a court of competent jurisdiction for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery purpose of restraining Employee from any actual or threatened breach of the Noncompetition Noticecovenant contained in Section 6.1(a).
(c) If for any reason a final decision of any court determines that the restrictions under this Section 6.1 are not reasonable or that the consideration therefore is inadequate, (ii) the Company such restrictions shall be required interpreted, modified or rewritten by such court to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery include as much of the Noncompetition Noticeduration, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans scope and geographic area identified in effect at the time of this Section 6.1 as will render such termination of employment for the Restricted Period, restrictions valid and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermudaenforceable.
Appears in 3 contracts
Samples: Employment Agreement (Federal National Mortgage Association Fannie Mae), Employment Agreement (Federal National Mortgage Association Fannie Mae), Employment Agreement (Federal National Mortgage Association Fannie Mae)
Noncompetition. (a) The Executive acknowledges that during his employment with (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, he has, (ii) the Executive has had and will continue to, become familiar with trade secrets and other to have access to Confidential Information concerning 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 affiliates have substantial relationships with their customers and their respective predecessorsthe 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 that his services (vi) the Executive has generated and will be continue to generate goodwill for the Company and its affiliates in the course of specialthe Executive’s employment. Accordingly, unique during the Executive’s employment hereunder and extraordinary value to the Company. In additionfor a period of one (1) year thereafter, the Executive hereby agrees that at any time (i) during the Employment PeriodExecutive will not, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted Period"), he will not directly or indirectly indirectly, own, manage, operate, control, participate inbe employed by (whether as an employee, consult withconsultant, independent contractor or otherwise, and whether or not for compensation) or render services for 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 manner engage in any other material business competing with the business of the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or any of its Affiliates engage subsidiaries or plan affiliates is engaged on the date of termination or in which they have planned, on or prior to engage such date, to be engaged in on or after such businessesdate, in any locale of any country in which the Company conducts business. It Notwithstanding the foregoing, nothing herein shall not be considered a violation of this Section 9.01 for prohibit the Executive to be from being a passive owner of not more than 2% one percent (1%) of the outstanding stock of any class equity securities of a publicly traded corporation which engaged in a business that is publicly tradedin 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. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 3 contracts
Samples: Employment Agreement (PaxMedica, Inc.), Employment Agreement (PaxMedica, Inc.), Employment Agreement (PaxMedica, Inc.)
Noncompetition. (a) The Executive acknowledges that during his employment with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) The Employee acknowledges that the Employer's business is intended to be nationwide, and agrees that any activity by the Employee anywhere in the United States within the scope of the Business would unfairly damage the Employer and the Business. Therefore, the Employee covenants and agrees that during the Employment Period, and (ii) (x) following a Justified Termination and delivery term of the Noncompetition Notice by the Company to the Executive, Employee's employment hereunder and for a period ending twelve (12) months two years after the termination Employee's employment with the Employer terminates, neither the Employee nor any of the ExecutiveEmployee's employment Affiliates will engage, anywhere in the United States, directly or indirectly, as an owner of a voting, equity or profits interest (or any option or right to acquire a voting, equity or profits interest), director, officer, employee, consultant, principal, agent, lender or guarantor of indebtedness or otherwise, in any activity relating to any business that is competitive with the Business or that is similar in any material respect to the Business.
(A) Notwithstanding the provisions of Section 2.1(i), this Agreement will not be deemed to prohibit the Employee or the Employee's Affiliates from "beneficially owning" (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended) equity securities of another Person engaged in an activity that, if engaged in by the Employee or the Employee's Affiliates, would be prohibited by Section 2.1(i), so long as the equity securities so owned by the Employee and the Employee's Affiliates (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination including any such equity securities owned by any "associate" of the ExecutiveEmployee and the Employee's employment (Affiliates within the time described meaning of Rule 12b-2 under the Securities Exchange Act of 1934, as amended) are of a class of equity security registered under the Securities Exchange Act of 1934, as amended, and do not represent, in clauses (i) and (ii)the aggregate, collectively, the "Restricted 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 business of the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the voting power of all outstanding stock equity securities of, or more than 2% of any class of a corporation which is publicly tradedthe profits interest in, the issuer thereof so long as neither the Executive Employee nor the Employee's Affiliates has no active participation in the business of any other involvement with such corporation. The terms of Section 9.01(a)(ii)(xother Person.
(B) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce Notwithstanding the provisions of Section 9.01(a)(ii)(x) (2.1(i), this Agreement will not be deemed to prohibit any child of the "Noncompetition Notice")Employee from being employed by any business that is competitive with the Business or that is similar in any material respect to the Business. Any child so employed shall not be subject to Section 2.3.
(biii) Subject The Employee and the Employer intend that the covenant contained in Section 3.1(i) be deemed to Section 12.09be a series of separate covenants made by the Employee, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary one for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery each state of the Noncompetition Notice, (ii) United States and each identical to the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery terms of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth covenant contained in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda2.1(i).
Appears in 3 contracts
Samples: Nonqualified Stock Option Agreement (Rentx Industries Inc), Nonqualified Stock Option Agreement (Rentx Industries Inc), Nonqualified Stock Option Agreement (Rentx Industries Inc)
Noncompetition. The following noncompetition provisions shall apply:
(ai) The Executive acknowledges that shall not, at any time during his employment with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning Company or the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after month period commencing on the termination day immediately following the date (the “Termination Date”) on which his employment with the Company terminates for any reason, without the consent of the Executive's employment and (y) following an Unjustified TerminationBoard, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted Period"), he will not directly or indirectly own, manage, control, participate in, consult with, render services for or in any manner engage in any activity that the Board, in the exercise of its reasonable business competing 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 shall promptly notify the Board (or its representative) in advance in writing (which shall include a description of the activity) of his intention to engage in any activity which could reasonably be deemed to be subject to this noncompetition provision, and the Board shall respond to the Executive in writing within 10 calendar days indicating its approval or objections to the Executive’s engagement in the activity; provided, however, that if the Board (or its representative) does not respond to or request additional information from the Executive within such ten (10) day period the Board’s approval shall be deemed to be granted. If the Executive fails to notify the Board of his intended activity in advance, the Board shall retain all its rights of objections. Notwithstanding the preceding provisions of this subsection (a)(i), this subsection (a)(i) shall not be construed as preventing the Executive from investing his personal assets in any business that competes with the Company, in such form or -9- 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 obligations of this Section 5 and, in particular, compliance with Section 5(a) of this Agreement; provided, however, that all such payments, benefits, or other entitlements under the Agreement are subject to and conditioned upon the Executive’s entering into the Release and Agreement referred to in Section 6(h) of this Agreement.
(iii) During the twenty-four (24) month period commencing on the day immediately following the Termination Date, the Executive shall not (A) influence or attempt to influence any person, firm, association, partnership, corporation, or other entity that is a contracting party with the Company to terminate any written agreement with the Company, except to the extent the Executive is acting on behalf of the 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 Company in good faith; provided, however, that nothing herein shall prohibit the Executive from generally advertising for personnel not specifically targeting any executive or other personnel of the Company.
(iv) During the Term of Employment and for the twenty-four (24) month period immediately thereafter, the Executive shall not publicly criticize or disparage the Company, any Related Company, or any director, officer, executive, or agent of the Company or its Affiliates any Related Company, except as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not may be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")required by law.
(bv) Subject to Section 12.09During the Term of Employment and for the twenty-four (24) month period immediately thereafter, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum not issue any defamatory statements about the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 2 contracts
Samples: Employment Agreement (Bally Total Fitness Holding Corp), Employment Agreement (Bally Total Fitness Holding Corp)
Noncompetition. (a) The Executive acknowledges that during his employment with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve three (123) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve three (123) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted 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 business of the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum an amount equal to 25% of the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, and (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 2 contracts
Samples: Employment Agreement (Watford Holdings Ltd.), Employment Agreement (Watford Holdings Ltd.)
Noncompetition. (a) The Executive acknowledges that during his employment with the CompanySubject to Section 12.1(c), he has, Seller covenants and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve of two (122) months after years following the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment Closing Date (the time described in clauses (i“Covenant Term”) it shall not, and (ii), collectively, the "Restricted Period"), he will shall cause its Subsidiaries 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 business of the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation the manufacture or sale of this Section 9.01 for products that are within the Executive to be a passive owner of not more than 2% scope of the outstanding stock of any class of Business (a corporation which is publicly traded“Seller Competitive Business”) in direct or indirect competition with Purchaser, so long whether as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force employer, proprietor, partner, stockholder, consultant, agent, lender or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")guarantor or otherwise.
(b) Purchaser covenants and agrees that for the Covenant Term it shall not, and shall cause its Subsidiaries not to, engage in the manufacture or sale of paperboard or paperboard packaging products using the Xxxxx acquired under this Agreement in direct or indirect competition with Seller’s retained paperboard or paperboard packaging businesses as of a time immediately after the Closing (each such retained business, a “Purchaser Competitive Business”), whether as employer, proprietor, partner, stockholder, consultant, agent, lender or guarantor or otherwise; provided that nothing in this Section 12.1(b) shall restrict Purchaser or its Subsidiaries from continuing to manufacture the paperboard and paperboard packaging products at the Wickliffe Mill as currently manufactured, or, with respect to the Enhanced Surface Cover Gradeline - C1S and C2S, as currently under development for manufacturing, and sell such products so manufactured.
(c) Notwithstanding anything to the contrary contained in Section 12.1(a):
(i) in the event that during the Covenant Term Seller completes a business combination transaction with a Person that is engaged in any Seller Competitive Business, which transaction results in the holders of the voting securities of Seller outstanding immediately prior to the consummation of such transaction owning less than 50% of the voting power of the voting securities of Seller or the surviving entity in the transaction or any parent thereof (any such entity, an “Acquiror”) outstanding immediately after the consummation of such transaction, such Acquiror or any of its Subsidiaries or Affiliates may engage in any activity prohibited or restricted by Section 12.1(a);
(ii) Seller may directly or indirectly hold interests in or securities of any Person to the extent that such investment does not directly or indirectly confer on Seller more than 15% of the voting power of such Person; and Seller does not have any representation on the board of directors or other managing body of such Person;
(iii) Seller may maintain and continue, and Section 12.1(a) shall not be understood to restrict in any manner whatsoever, the operations of Seller and its Subsidiaries that are not being transferred to Purchaser hereunder in accordance with current and past practices and the normal expansion thereof, including the production, sale and distribution of all products and grades currently produced by Seller and its Subsidiaries that are not included within the Business;
(iv) Seller may acquire interests in or securities of any Person as an investment by Seller’s pension funds or funds of any other benefit plan of Seller whether or not such Person is engaged in, any Seller Competitive Business;
(v) Seller may acquire interests in or securities of any Person that derived 25% or less of its total annual revenues in its most recent fiscal year from activities that constitute Seller Competitive Businesses;
(vi) Subject to Section 12.0912.1(e) hereof, Seller may acquire a business, assets and/or more than 50% of the outstanding capital stock or other equity interests in any Person (or any lesser percentage if, pursuant to contractual or other arrangements, Seller has the right to cause such Person to take the actions specified in the following proviso) that derived in excess of 25% of its total annual revenues in its most recent fiscal year from activities that constitute Seller Competitive Businesses; provided, however, that Seller shall use commercially reasonable efforts to divest that portion of such Person that engages in activities constituting Seller Competitive Businesses on commercially reasonable terms as soon as reasonably practicable and in any event within twelve months following the Company provides acquisition of such ownership or interest;
(vii) Seller may acquire or use any product for internal uses or to conduct Seller’s or its Subsidiaries’ other businesses that consume, use, contain, depend upon or otherwise incorporate any product; and
(viii) Seller may perform any act or conduct any business contemplated hereby or the Executive with the Noncompetition Notice, Transition Agreements.
(id) the Company The parties hereto acknowledge and agree that nothing herein shall be deemed to require Seller to give notice to or obtain the consent of Purchaser in order to engage in any activity or transaction of the types described in Section 12.1(c) or otherwise.
(e) If at any time and from time to time during the Covenant Term, Seller engages in any acquisition or series of related acquisitions covered under Section 12.l(c)(vi) hereof (a “Permitted Competitive Acquisition”), Seller shall notify Purchaser of such Permitted Competitive Acquisition as promptly as practicable following the consummation of such acquisition. Not later than the ninetieth (90th) calendar day after the consummation of the Permitted Competitive Acquisition (or an earlier date, as determined by Seller), Seller shall provide Purchaser (or its designee) and its counsel, accountants, debt financing sources and other representatives reasonable access to the books, records, employees, officers, accountants, attorneys, representatives and properties of the Seller Competitive Business, for a period of sixty (60) calendar days from the date such access is first provided (such period, the “Due Diligence Period”), subject to any then existing confidentiality restrictions and limitations on access to competitively sensitive information required for compliance with antitrust Law and to continue to pay Purchaser’s entry into a confidentiality agreement on substantially the Executive same terms as those contained in the Base Salary for Confidentiality Agreement. Within sixty (60) days of the Restricted commencement of the Due Diligence Period, paid Purchaser (or its designee) may, but is not obligated to, make a final comprehensive written offer (the “Final Offer”) to Seller to acquire the Seller Competitive Business. In the event that Seller determines that Final Offer is acceptable, subject to completion of definitive documentation, the Purchaser (or its designee) and Seller shall engage in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date good faith negotiations following the delivery of such Final Offer to reach agreement on the Noncompetition Noticedefinitive terms of such transaction. In the event that (a) Seller rejects such Final Offer in writing, Purchaser (or its designee) fails to make any such Final Offer within such sixty (60) day period described above or notifies Seller that Purchaser (or its designee) does not intend to make any such Final Offer, or (c) Purchaser (or its designee) and Seller are unable to reach agreement on the definitive terms of such transaction within thirty (30) calendar days from the receipt of the Final Offer, Seller may engage in discussions regarding and consummate a divestiture of the Seller Competitive Business; provided that Seller may not enter into any definitive agreement concerning or consummate a divestiture of the Seller Competitive Business with any other third party on terms that are, in the aggregate, less favorable to Seller than those offered by Purchaser (or its designee), unless Purchaser (or its designee) has been provided a summary of the material terms of the offer made by any such third party, and Purchaser has not within a period often (10) calendar days following receipt of such third party offer notified Seller in writing that it is willing to acquire the Seller Competitive Business on the terms and conditions contained in such third party offer and within ten (10) calendar days following such written notification from Purchaser., Seller and Purchaser enter into definitive agreements on such terms and conditions. Seller agrees that from the consummation of a Permitted Competitive Acquisition until the earlier to occur of (a) the date on which Purchaser notifies Seller in writing that Purchaser (or its designee) does not intend to make a Final Offer, (iiib) the Executive shall continue end of the Due Diligence Period, provided that Purchaser (or its designee) has failed to receive major medical insurance coverage benefits from make a Final Offer within the Company's plans Due Diligence Period, (c) the date on which Seller rejects such Final Offer in effect at the time of such termination of employment for the Restricted Periodwriting, and (ivd) the Company shall continue to provide date which is 30 days after the housing allowance set forth in Section 4.04(e) for the lesser end of the Restricted Period and Due Diligence Period, Seller may not engage in discussions with, or provide confidential information to, a third party regarding the period during which divestiture to such party of, or consummate such a divestiture of the Executive remains a resident of BermudaSeller Competitive Business.
Appears in 2 contracts
Samples: Equity and Asset Purchase Agreement (NewPage Energy Services LLC), Equity and Asset Purchase Agreement (NewPage Holding CORP)
Noncompetition. (a) The Executive acknowledges that during his employment Seller agrees that, in consideration of the purchase by Purchaser hereunder and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it shall not, on or prior to the date which is five (5) years after the Closing Date, directly or indirectly, own, manage, operate, control, be employed by, provide consulting services to, participate in, lend its name to, invest in or be connected in any manner with the Companymanagement, he hasownership, operation or control of any business, venture, or activity which competes with the Products (including parts and will continue to, become familiar with trade secrets and other Confidential Information concerning accessories therefore or any aspect of the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the CompanyDivision Business). In addition, the Executive hereby The Seller also agrees that at any time (iit shall cause its directors and officers to comply with this Section 8.12(a) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve of one (121) months year after the termination Closing Date and shall be responsible for any breach of the Executive's employment this Section 8. 12(a) by such officers and (ydirectors. The Seller also agrees it shall use its reasonable best efforts to cause its employees to comply with this Section 8.12(a) following an Unjustified Termination, for a period ending twelve of one (121) months year after the termination Closing Date.
(b) Seller further agrees that for a period of five (5) years after the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted Period"), he Closing Date it will not directly or indirectly ownwithout the prior written consent of Purchaser, managerecruit, controloffer employment, participate inemploy, consult withengage as a consultant, render services for lure or entice away or in any other manner engage in persuade or attempt to persuade any business competing with the business person who is an employee of the Company Purchaser or any subsidiary, group, or division of Purchaser or any Affiliate thereof (including the Division Business), to leave the employ of Purchaser unless such person has been terminated by the Purchaser or an Affiliate of Purchaser. The Seller also agrees that it shall cause its Affiliates as such businesses exist or are in process as of the date of termination, within directors and officers to comply with this Section 8.12(b) and shall be responsible for any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation breach of this Section 9.01 8. 12(b) by such officers and directors. The Seller also agrees it shall use its reasonable best efforts to cause its employees to comply with this Section 8.12(b) for a period of one (1) year after the Executive Closing Date. With respect to be a passive owner of not more than 2% of OrthoCanada's officers, directors and employees, the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation noncompetition provisions referred to above shall apply only in the business country of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of Canada and its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")provinces and territories.
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Orthologic Corp), Asset Purchase Agreement (Orthologic Corp)
Noncompetition. 10.1 Until the Date of Termination, Executive agrees not to enter into competitive endeavors and not to undertake any commercial activity which is contrary to the best interests of the Corporation or its affiliates, including becoming an employee, owner (except for passive investments of not more than three percent of the outstanding shares of, or any other equity interest in, any company or entity listed or traded on a national securities exchange or in an over-the-counter securities market), officer, agent or director of (a) The Executive acknowledges that during his employment any firm or person engaged in the operation of a business engaged in the acquisition of industrial businesses or (b) any firm or person which either directly competes with a line or lines of business of the Corporation accounting for ten percent (10%) or more of the Corporation's gross revenues or earnings before taxes or derives ten percent (10%) or more of such firm's or person's gross revenues or earnings before taxes from a line or lines of business which directly compete with the CompanyCorporation. Notwithstanding any provision of this Agreement to the contrary, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and Executive agrees that his services will be breach of special, unique and extraordinary value the provisions of this Section 10.1 shall permit the Corporation to terminate Executive's employment for Cause in accordance with Section 5.1(b) hereof.
10.2 After the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Date of Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12of time equal in years to the multiple of annual salary received by Executive pursuant to Sections 6.6(b) months after the termination of the Executive's employment and (y6.7(b) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted Non-Competition Period"), he will Executive agrees not directly or indirectly ownto become an employee, manage, control, participate in, consult with, render services owner (except for or in any manner engage in any business competing with the business of the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner investments of not more than 2% three percent of the outstanding stock shares of, or any other equity interest in, any company or entity listed or traded on a national securities exchange or in an over-the-counter securities market), officer, agent or director of any class of firm or person which directly and substantially competes with a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than Corporation accounting for ten percent (10%) or more of the Corporation's gross revenues or earnings before taxes. During the Non-Competition Period, Executive will be available to answer questions and provide advice to the Corporation; provided, however, that such requirement shall not unreasonably interfere with any other of Executive's activities which Executive is then pursuing and which are not otherwise prohibited by this Section 10. Also, during the Non-Competition Period, Executive will retain in confidence any and all confidential information known to him concerning the Corporation and its business days following a Justified Termination and shall not use or disclose such information without the approval of its intention the Corporation except to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")extent such information becomes public or as may be required by law.
(b) Subject 10.3 Executive acknowledges and agrees that damages for breach of the covenant not to compete in this Section 12.0910 will be difficult to determine and will not afford a full and adequate remedy, and therefore Executive agrees that the Corporation, in addition to seeking actual damages pursuant to the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance procedures set forth in Section 4.04(e) for the lesser 13 below, may seek specific enforcement of the Restricted Period covenant not to compete in any court of competent jurisdiction, including, without limitation, by the issuance of a temporary or permanent injunction, without the necessity of a bond. Executive and the Corporation agree that the provisions of this covenant not to compete are reasonable. However, should any court or arbitrator determine that any provision of this covenant not to compete is unreasonable, either in period during of time, geographical area, or otherwise, the parties agree that this covenant not to compete should be interpreted and enforced to the maximum extent which the Executive remains a resident of Bermudasuch court or arbitrator deems reasonable.
Appears in 2 contracts
Samples: Employment Agreement (Coltec Industries Inc), Employment Agreement (Coltec Industries Inc)
Noncompetition. (a) During the Employment Period, the Employee agrees not to compete in any manner, either directly or indirectly, with the Company, or to assist any other person or entity to compete with the Company. Further, while an employee of the Company, the Employee agrees not to engage in any other employment or business enterprise without the written permission of the Chief Executive Officer of the Company.
(b) After the termination, for any reason, of his employment with the Company, the Employee agrees that for a period of one (1) year following such termination, the 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 Executive acknowledges Employee further agrees that for the same period following such termination, for any reason, the Employee will not 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, he hasthe 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, and will continue tofor any reason, become familiar with trade secrets and of his employment, the Employee agrees either on his behalf or on behalf of any other Confidential Information concerning person or entity, directly or indirectly, not (i) to hire, solicit, or encourage to leave the employ of the Company any person who is then an the Employee of the Company, or (ii) to solicit, entice away or divert any person or entity who is then a client of the Company and its Affiliates who was a client of the Company at the time of employment. The Employee agrees that customer or client lists, business contracts and their respective predecessorsrelated items are the property of the Company. The restrictions described herein shall apply to the activities of the Employee in any state or other jurisdiction in which the Company engaged in business during the term of employment. Furthermore, and that for one (1) year following the termination, for any reason, of his services will be employment (except following termination of special, unique and extraordinary value the employment of the Employee pursuant to the Company. In addition's termination of business and liquidation of assets), the Executive hereby Employee agrees that at any time he will not (i) during solicit or accept work or provide services which is direct follow-up to work or services under contract performed or being performed by the Employment PeriodCompany or being actively solicited by the Company at the time of termination of the employment of the Employee, and or (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted Period"), he will not directly or indirectly own, manage, control, participate in, consult with, render services 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 or in any manner engage in any business competing with the purposes of protecting the business of the Company or its Affiliates as Company. However, if any such businesses exist or are in process as restriction is found by any court of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive competent jurisdiction to be unenforceable because it extends for too long a passive owner period of not more than 2% time or over too great a range of the outstanding stock of any class of activities or in too broad a corporation which is publicly tradedgeographic area, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) it shall be interpreted to extend only over the maximum period of no force time, range of activities or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention geographic area as to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")which it may be enforceable.
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 2 contracts
Samples: Employment Agreement (C P Clare Corp), Employment Agreement (C P Clare Corp)
Noncompetition. (a) The Executive acknowledges that during his employment Except with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning prior written consent of the Company authorized by a resolution adopted by the Board, for the period beginning upon the date hereof and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time ending on (i) during in the Employment Period, and (ii) (x) following a Justified Termination and delivery event of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment by the Executive for Good Reason pursuant to Section 7(c) or by the Company pursuant to Section 7(d) hereof and the Executive is receiving payments from the Company pursuant to Section 8(d) hereof, the date on which the last such payment is received; or (yii) following an Unjustified Termination, for a period ending twelve (12) months after in the event of the voluntary termination of the Executive's employment (by the time described in clauses (iExecutive pursuant to Section 7(d) and (ii), collectivelyhereof or termination by the Company for Cause, the "Restricted Period"), he will date which is nine (9) months from the Termination Date; Executive shall not directly or indirectly ownas owner, managepartner, controljoint venturer, participate instockholder, consult withemployee, render services for broker, agent, principal, trustee, corporate officer, director, licensor, or in any manner capacity whatsoever engage in, become substantially financially interested in, employed by or have any connection with, any business engaged principally in the processing of electronic hotel reservations or travel agent commissions or providing hotel property system services or providing hotel representation or marketing services in any business competing with the business of country where the Company or any of its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage subsidiaries is then engaged in such businesses. It shall not be considered a violation of this Section 9.01 for the business; provided, however, that Executive to be a passive owner of not more than 2% of the outstanding stock may own any securities of any class of a corporation which is engaged in such business and is publicly traded, so long as the Executive has no active participation in the business traded stock or securities of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, agrees that for a period of one (i1) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance year following termination of employment with the Company's regular pay practices, starting with the first pay date following delivery Executive will not solicit or in any manner encourage employees of the Noncompetition NoticeCompany, its subsidiaries or parent to leave its employ.
(iic) In case one or more of the Company 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 required 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 11 shall for any reason be held to pay be excessively broad with regard to time, duration, geographic scope or activity that term shall be construed in a lump sum manner to enable it to be enforced to the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermudaextent compatible with applicable law.
Appears in 2 contracts
Samples: Employment Agreement (Pegasus Solutions Inc), Employment Agreement (Pegasus Solutions Inc)
Noncompetition. (a) The Executive acknowledges that during his employment Without limiting the Executive’s obligations to the Company pursuant to Sections 1 and 2 hereof, and only to the extent consistent with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be provisions of special, unique and extraordinary value to the Company. In additionsuch Sections, the Executive hereby covenants and agrees that during the period of the Executive’s employment with the Company the Executive will not, directly or indirectly, or as a partner, shareholder, lender, officer, director, trustee, employee, agent, consultant or member of any person, firm or corporation, or otherwise, enter into the employ of, render or otherwise engage (i) in any business activities which are the same or similar to any of the business activities of the Company, or (ii) in any consulting or advising regarding any activities of the Company or about any aspect of any existing or contemplated agreement with the Company for any person or entity that is, or has been at any time (i) during in the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending prior twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Terminationmonths, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted 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 business customer of the Company or its Affiliates as such businesses exist a person or are in process as of entity which has contacted, or been contacted by, the date of termination, within Company regarding any geographical area in potential services which the Company might provide such person or its Affiliates engage or plan entity. Subject to engage in the Executive’s obligations to the Company pursuant to Sections 1 and 2 hereof, and only to the extent consistent with the provisions of such businesses. It Sections, the foregoing limitations shall not be considered a violation of this Section 9.01 for deemed to prohibit the Executive to be from acquiring as a passive owner of investment not more than 2% five percent (5%) of the outstanding capital stock of any class of a corporation competing business, which stock is publicly traded, so long as traded on a national securities exchange or the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")over-the-counter market.
(b) Subject to Section 12.09The Executive hereby covenants and agrees that during the period of Executive’s employment with the Company the Executive will not, directly or indirectly, or as a partner, shareholder, officer, director, trustee, employee, agent, consultant or member of any person, firm or corporation, or otherwise, solicit, by way of offering an employment or consulting opportunity or otherwise, employees of the Company.
(c) The Executive hereby covenants and agrees that during the period of Executive’s employment with the Company and, in the event case of termination of such employment by the Company provides for Cause, termination of such employment by the Executive with the Noncompetition Notice, (i) other than for Good Reason or any other case of termination pursuant to which the Company shall be required is paying to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, termination compensation (iior other amounts) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e6.6.1, for one (1) for year after the lesser termination of such employment, the Executive will not, directly or indirectly, or as a partner, shareholder, officer, director, trustee, employee, agent, consultant or member of any person, firm or corporation, or otherwise: (i) solicit any customer of the Restricted Period and Company; (ii) be employed by, or render consulting or advisory services to, any corporation, partnership or other entity if the period Executive’s knowledge or expertise during which the Executive remains a resident course of Bermudasuch employment or consulting or advisory services would be used to solicit customers of the Company; (iii) directly or indirectly attempt to induce any vendor, customer or supplier of or to the Company to terminate such person’s relationship with the Company; or (iv) hire, induce or seek to induce any employee of the Company or any of the Company’s subsidiaries to leave such employment; provided, however, the restrictions in this clause (iv) shall not apply to such hiring or inducement of any employee if the employee’s employment with the Company has been terminated by the Company prior to such hiring or inducement.
Appears in 2 contracts
Samples: Employment Agreement (Impsat Fiber Networks Inc), Employment Agreement (Impsat Fiber Networks Inc)
Noncompetition. (a) The Executive acknowledges that during his During your employment with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending of twelve (12) months after the following your voluntary or involuntary termination of employment, you shall not become an owner in, shareholder with more than a 2% equity interest in, investor in, or an employee, contractor, consultant, advisor, representative, officer, director, or agent of, a trade or business that offers products and services that are the Executive's same or substantially similar to the products and services provided by the Employer Company in any geographic market in which the Employer Company conducts business (“Competitor”); provided, however, that the duties and responsibilities of said employment or engagement as an owner in, shareholder with more than 2% equity interest in, investor in, employee, contractor, consultant, advisor, representative, officer, director or agent are
(i) the same, similar, or substantially related to your current duties and responsibilities or duties or responsibilities performed by you while employed by the Employer Company at any time during a six (6) month period prior to your date of termination of employment and (yii) following an Unjustified Termination, related to or concerning the Competitor’s business activities in the Restricted Territory. The parties agree and affirm that their intention with respect to Paragraph 5 is that your activities shall be limited only for a period ending the twelve (12) months month period after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted 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 business of the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for any reason. The provisions calling for a “look back” of six (6) calendar months prior to the date of termination of employment are intended solely as a means of identifying the duties and responsibilities that will define the restricted activities covered by Paragraph 5 and are not intended to nor shall they, under any circumstances, be construed to define the length or term of any such restriction. For purposes of Paragraph 5, the term “Restricted Territory” means the geographic area that is part of your current duties and responsibilities or the geographic area that was part of your duties and responsibilities within a period of six (6) month period prior to the date of your termination of employment. If a court of competent jurisdiction determines that the Restricted PeriodTerritory as defined herein is too restrictive, and (iv) then the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of parties agree that said court may reduce or limit the Restricted Period and Territory to the period during which largest acceptable area so as to enable the Executive remains a resident enforcement of BermudaParagraph 5.
Appears in 2 contracts
Samples: Executive Employment Agreement (Laboratory Corp of America Holdings), Confidentiality Agreement
Noncompetition. The following noncompetition provisions shall apply:
(ai) The Executive acknowledges that shall not, at any time during his employment with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning Company or the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after month period commencing on the termination day immediately following the date (the “Termination Date”) on which his employment with the Company terminates for any reason, without the consent of the Executive's employment and (y) following an Unjustified TerminationBoard, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted Period"), he will not directly or indirectly own, manage, control, participate in, consult with, render services for or in any manner engage in any activity that the Board, in the exercise of its reasonable business competing judgment, determines is competitive with or adverse to the Company’s business or welfare, whether alone, as a partner of any partnership or joint venture, or as an officer, director, employee, independent contractor, consultant, or investor (a “Competitive Activity”). In furtherance of the immediately foregoing sentence, the Executive shall promptly notify the Board (or its representative) in advance in writing (which shall include a description of the activity) of his intention to engage in any activity which could reasonably be deemed to be subject to this noncompetition provision, and the Board shall respond to the Executive in writing within 10 calendar days indicating its approval or objections to the Executive’s engagement in the activity, provided, however, that if the Board (or its representative) does not respond to or request additional information from the Executive within such ten (10) day period, the Board’s approval shall be deemed to be granted. If the Executive fails to notify the Board of his intended activity in advance, the Board shall retain all its rights of objections. Notwithstanding the preceding provisions of this Paragraph, this Section 5(a)(i) shall not be construed as preventing the Executive from investing his personal assets in any business 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 obligations of this Section 5 and, in particular, compliance with Section 5(a) of this Agreement; provided, however, that all such payments, benefits, or other entitlements under the Agreement are subject to and conditioned upon the Executive’s entering into the Release and Agreement referred to in Section 6(h) of this Agreement.
(iii) During the twenty-four (24) month period commencing on the day immediately following the Termination Date, the Executive shall not (A) influence or attempt to influence any person, firm, association, partnership, corporation, or other entity that is a contracting party with the Company to terminate any written agreement with the Company, except to the extent the Executive is acting on behalf of the 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 Company in good faith; provided, however, that nothing herein shall prohibit the Executive from generally advertising for personnel not specifically targeting any executive or other personnel of the Company.
(iv) During the Term of Employment and for the twenty-four (24) month period immediately thereafter, the Executive shall not publicly criticize or disparage the Company, any Related Company, or any director, officer, executive, or agent of the Company or its Affiliates any Related Company, except as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not may be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")required by law.
(bv) Subject to Section 12.09During the Term of Employment and for the twenty-four (24) month period immediately thereafter, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum not issue any defamatory statements about the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 2 contracts
Samples: Settlement Agreement (Bally Total Fitness Holding Corp), Chief Executive Officer Employment Agreement (Bally Total Fitness Holding Corp)
Noncompetition. (a) The Executive acknowledges Employee agrees that during his employment with the Companyterm of this Agreement and for nine (9) months after the Employment Termination Date (except that in the event of termination due to a Change of Control, he hasas defined in subsection 4(a) hereof, and will continue tothis Section 10 shall not apply to Employee), become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time 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 person being solicited is or had been a purchaser from or seller to the Company of such type of property during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after prior to the termination of the Executive's employment and Employment Termination Date or (yii) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (recruit or otherwise solicit or induce any person who is at the time described in clauses (i) and (ii), collectively, the "Restricted Period"), he will not directly an employee or indirectly own, manage, control, participate in, consult with, render services for or in any manner engage in any business competing with the business consultant of the Company to terminate his employment with, or its Affiliates as otherwise cease his relationship with, the Company, or hire any such businesses exist employee or are in process as consultant who has left the employ of the date Company within one year after termination of terminationsuch employee's employment or consultant's relationship with the Company, within provided, however, that Employee may recruit any geographical area in which former employee of the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive whose employment has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless been terminated by the Company notifies and, provided further, that if Employee has terminated his employment of his own volition, this restriction upon recruiting employees or consultants shall run for two (2) years after the Executive in writing no later than ten (10) business days following a Justified Employment Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")Date.
(b) Subject During any period that Employee is entitled to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, receive and is paid severance compensation in accordance with Section 5 hereof, if Employee shall become an employee, officer, director, shareholder, principal, agent, partner or consultant or otherwise be engaged in or have a financial or other interest in any business which competes with the Company's regular pay practices, starting with or its subsidiaries or affiliates or providers under contract of property management or administrative services, equipment or facilities (which activity by the first pay date following delivery of the Noncompetition NoticeEmployee is not prohibited by this Agreement), (ii) the Company any base salary received from such activities shall be required to set off against any severance pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue which he is entitled to receive major medical insurance coverage benefits from the Company's plans . Notwithstanding the foregoing, Employee may make personal investments in effect at the time equity securities of any publicly traded company provided that any such termination investment does not exceed one percent (1%) of employment for the Restricted Period, and market capitalization of the class of securities of the company in which his investment is made.
(ivc) the Company shall continue to provide the housing allowance The restrictions against activities set forth in Section 4.04(e10(a) and (b) above are considered by the parties to be reasonable for the lesser purposes of protecting the business of the Restricted Period and 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 during of time, range of activities or geographic area as to which the Executive remains a resident of Bermudait may be enforceable.
Appears in 2 contracts
Samples: Employment Agreement (Berkshire Realty Co Inc /De), Employment Agreement (Berkshire Realty Co Inc /De)
Noncompetition. (a) The Executive acknowledges that during his employment with During the Company, he has, period (the “Restricted Period”) from the consummation of the transactions contemplated by the Merger Agreement (the “Closing”) and will continue to, become familiar with trade secrets and other Confidential Information concerning continuing until the Company and its Affiliates and their respective predecessors, and that his services will be earlier of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery the six (6) month anniversary of the Noncompetition Notice by date on which the Company to the Executive, for a period ending twelve (12) months after the termination Restricted Party is no longer an employee or director of the Executive's employment and Covered Parties or (y) following in the event that the Restricted Party’s departure as an Unjustified Termination, for a period ending twelve (12) months after the termination employee or director of the Executive's employment Covered Parties is a result of his or her no longer being an employee, director, member, partner, or Affiliate of Corsair Capital LLC or its Subsidiaries or Affiliates (collectively, “Corsair”), the three (3) month anniversary of the date on which the Restricted Party is no longer an employee or director of the Covered Parties, the Restricted Party shall not, directly or indirectly, engage or invest in, own, manage, operate, finance, control, or participate in the ownership, management, operation, financing, or control of, or be employed by, any business that is primarily engaged in the Business (a “Competitive Enterprise”); provided, that the Restricted Party may (a) purchase or otherwise acquire, as a passive investment, up to (but not more than) five percent (5%) of any class of securities of any Competitive Enterprise that is listed on a national securities exchange or traded on a national market system (but without otherwise participating in the activities of such enterprise) or (b) acquire, invest in, own, manage, operate, finance, control, or participate in the ownership, management, operation, financing, or control of, or be employed by, any business that provides electronic payment processing services so long as (I) the revenues or gross profits derived by such business from merchants in the payday lending, installment lending, buy-here, pay-here auto lending, collections, debt recovery and accounts receivable management industries (the time “Covered Industries”) do not exceed fifteen percent (15%) of the total revenue or total gross profits, respectively, of such business during any twelve-month period during the Restricted Period and (II) the Restricted Party is not directly involved, in any material respect, in any such activities with respect to the Covered Industries.
(b) Notwithstanding anything to the contrary in this Agreement, the ownership, management, operation, financing, or control of any “portfolio company” (as such term is customarily used in the private equity industry) (a “Portfolio Company”) that is considered to be a Competitive Enterprise for purposes of this Agreement by (x) any investment fund affiliated with the Restricted Party (including Corsair) or (y) by any Person affiliated with the Restricted Party acting as a sponsor, investment advisor, manager or general of such affiliated investment fund (any person described in clauses (ix) and or (iiy), collectively, the "Restricted Period"an “Investment Group”), 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 business of the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation breach of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded1, so long as the Executive has no active participation Restricted Party does not act as a representative of an Investment Group referred to in clauses (x) or (y) as a party directly engaged in the business oversight, management or control of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")Portfolio Company.
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 2 contracts
Samples: Director Support Agreement (Thunder Bridge Acquisition LTD), Director Support Agreement (Thunder Bridge Acquisition LTD)
Noncompetition. (a) The Executive acknowledges Employee agrees that during his the term of Employee’s employment with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning ending upon the Company and its Affiliates and their respective predecessors, and that his services will be second anniversary of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of such employment, unless otherwise extended pursuant to the Executive's employment and (y) following an Unjustified Terminationterms of this Section 7, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii)Employee will not, collectively, the "Restricted Period"), he will not directly or indirectly ownindirectly, manageeither as an employee, controlemployer, participate inconsultant, consult withagent, render services for principal, partner, stockholder, corporate officer, director, or in any manner other individual or representative capacity, engage or participate in any business competing or activity that is in competition in any manner whatsoever with the business of the Company or its Affiliates as such businesses exist or are in process as of the date of terminationCompany, within the State of Texas and any geographical area other relevant jurisdiction in which the Company or its Affiliates engage or plan does business. Employee represents to engage the Company that the enforcement of the restriction contained in such businesses. It shall this Section 7 would not be considered a violation of this Section 9.01 for the Executive unduly burdensome to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")Employee.
(b) Subject Employee agrees that a breach or violation of this covenant not to compete by Employee shall entitle the Company to seek an injunction issued by any court of competent jurisdiction, restraining any further or continued breach or violation of this covenant. Such right to an injunction shall be cumulative and in addition to, and not in lieu of, any other remedies to which the Company may show itself justly entitled. Further, during any period in which Employee is in breach of this covenant not to compete, the time period of this covenant shall be extended for an amount of time that Employee is in breach hereof.
(c) In addition to the restrictions set forth in this Section 12.097, Employee shall not, during the term of Employee’s employment agreement with the Company, and ending upon the second anniversary of the termination such employment agreement with the Company, either directly or indirectly, (i) make known to any person or entity the names and addresses of any of the customers of the Company or ZEC, the contacts of the Company or ZEC, or any other information pertaining to such customers or contacts, (ii) call on, solicit, or take away, or attempt to call on, solicit, or take away, any of the customers of the Company or ZEC, on whom Employee called or with whom Employee became acquainted during his or her association with the Company or ZEC, or (iii) recruit or hire or attempt to recruit or hire, directly or by assisting others, any employee, consultant, or independent contractor of the Company or ZEC.
(d) If Employee violates any covenant contained in this Section 7 and the Company brings legal action for injunctive or other relief, the Company shall not, as a result of the time involved in obtaining the relief, be deprived of the benefit of the full period of any such covenant.
(e) The parties to this Agreement agree that the limitations contained in this Section 7 with respect to time, geographical area, and scope of activity are reasonable. However, if any court shall determine that the time, geographical area, or scope of activity of any restriction contained in this Section is unenforceable, it is the intention of the parties that such restrictive covenant set forth herein shall not thereby be terminated but shall be amended by the court to the extent required to render it valid and enforceable.
(f) The parties to this Agreement agree that the limitations contained in this Section 7 shall end, and shall be of no further force or effect, in the event (i) the Company terminates the employment of Employee without Cause or Employee resigns with Good Reason, or (ii) the Company has failed to fulfill the payment obligations to Employee and Mxxxxxxx Xxxx set forth in that certain Promissory Note (herein so called) executed in connection with the acquisition of the capital stock of the Company by ZEC and, as a consequence thereof, Employee and Mxxxxxxx Xxxx (i) obtain ownership of the assets of the Company or (ii) regain ownership of the capital stock of the Company.
(g) The parties to this Agreement further agree that in the event the Company provides terminates the Executive employment of Employee without “Cause” or Employee terminates his employment with the Noncompetition NoticeCompany without Good Reason, (ithe scope of the limitation contained in Section 7(a) shall be narrowed exclusively to the products then sold by the Company, rather than “any business or activity that is in competition in any manner whatsoever with the business of the Company, within the State of Texas and any other relevant jurisdiction in which the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermudadoes business.”
Appears in 1 contract
Samples: Employment Agreement (ZEC, Inc.)
Noncompetition. (a) The Executive acknowledges that during his employment with In furtherance of the Company, he hassale of the Assets and the Business to Buyer hereunder by virtue of the transactions contemplated hereby and the Shareholder Purchase Agreement, and will continue to, become familiar with trade secrets and other Confidential Information concerning to more effectively protect the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by Assets and the Company to Businesses so sold, each of the ExecutiveSellers and Shareholders covenants and agrees that, for a period ending twelve (12) months after on the termination later to occur of: the fourth anniversary of the Executive's employment and (y) following an Unjustified Termination, for a Closing Date or the period ending twelve (12) months after the termination of the Executive's on any date specified in any employment agreement between Buyer and any Shareholder regarding a similar covenant (the time described in clauses (i) and (ii), collectively, the "Restricted PeriodTerm"), he Sellers and Shareholders will not (a) engage, directly or indirectly, in the Business anywhere within the United States and its territories and protectorates (the "Territory"); (b) solicit any Person who is or was a customer or supplier of Sellers or Shareholders during the two-year period immediately preceding the Closing Date, or who becomes a customer or supplier of Buyer at any time during the Term, for the purpose of engaging in, or assisting any Person in engaging in, any business which competes directly or indirectly own, manage, control, participate in, consult with, render services for or in any manner engage in any business competing with the business Business; or (c) solicit for employment any Continuing Employee or any other Person who was, during the two-year period immediately preceding the Closing Date, or who becomes, at any time during the Term, an employee of Buyer. Notwithstanding the Company foregoing, nothing contained in this SECTION 5.6 shall prohibit Sellers or its Affiliates as such businesses exist or are Shareholders from owning (in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of aggregate) not more than 2% of the outstanding stock five percent (5%) of any class of stock listed on a corporation which is publicly traded, so long as the Executive has no active participation national securities exchange or traded in the over-the-counter market or continuing to own any interest in any noncompetitive business owned by Sellers or Shareholders as of such corporationthe Closing Date. The terms Notwithstanding the foregoing, nothing contained in this SECTION 5.6 shall prohibit any Shareholder from accepting employment with a company (other than either of Section 9.01(a)(ii)(xSellers) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, engaged in the event the Company provides the Executive with the Noncompetition NoticeBusiness, provided that (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted PeriodBusiness constitutes less than fifteen percent (15%) of such company's total assets, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, revenue or net income; (ii) the Company shall be required Shareholder's employment with such company is unrelated to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, Business; and (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect Shareholder is not employed by Buyer or one of its Affiliates at the time he accepts such employment. Notwithstanding the foregoing, the purposes of this SECTION 5.6.1 and Rockx X'Xxxxxxxxx xxxy, the Business as applied to Rockx X'Xxxxxxxxx xxxll mean only the distribution of gaming parts for other than an original equipment manufacturer or other business in which sales of gaming parts are less than 20% revenues and SUBSECTION 5.6.1 (B) shall only apply to the extent Rockx X'Xxxxxxxxx xxx used Confidential Information as defined in SECTION 5.6.2 in such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermudasolicitation.
Appears in 1 contract
Samples: Asset Purchase Agreement (Wells Gardner Electronics Corp)
Noncompetition. The following noncompetition provisions shall apply:
(ai) The Executive acknowledges that shall not, at any time during his employment with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning Company or the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after month period commencing on the termination day immediately following the date (the “Termination Date”) on which his employment with the Company terminates for any reason, without the consent of the Executive's employment and (y) following an Unjustified TerminationBoard, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted Period"), he will not directly or indirectly own, manage, control, participate in, consult with, render services for or in any manner engage in any activity that the Board, in the exercise of its reasonable business competing 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 shall promptly notify the Board (or its representative) in advance in writing (which shall include a description of the activity) of his intention to engage in any activity which could reasonably be deemed to be subject to this noncompetition provision, and the Board shall respond to the Executive in writing within 10 calendar days indicating its approval or objections to the Executive’s engagement in the activity; provided, however, that if the Board (or its representative) does not respond to or request additional information from the Executive within such ten (10) day period the Board’s approval shall be deemed to be granted. If the Executive fails to notify the Board of his intended activity in advance, the Board shall retain all its rights of objections. Notwithstanding the preceding provisions of this subsection (a)(i), this subsection (a)(i) shall not be construed as preventing the Executive from investing his personal assets in any business 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 obligations of this Section 5 and, in particular, compliance with Section 5(a) of this Agreement; provided, however, that all such payments, benefits, or other entitlements under the Agreement are subject to and conditioned upon the Executive’s entering into the Release and Agreement referred to in Section 6(h) of this Agreement.
(iii) During the twenty-four (24) month period commencing on the day immediately following the Termination Date, the Executive shall not (A) influence or attempt to influence any person, firm, association, partnership, corporation, or other entity that is a contracting party with the Company to terminate any written agreement with the Company, except to the extent the Executive is acting on behalf of the 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 Company in good faith; provided, however, that nothing herein shall prohibit the Executive from generally advertising for personnel not specifically targeting any executive or other personnel of the Company.
(iv) During the Term of Employment and for the twenty-four (24) month period immediately thereafter, the Executive shall not publicly criticize or disparage the Company, any Related Company, or any director, officer, executive, or agent of the Company or its Affiliates any Related Company, except as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not may be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")required by law.
(bv) Subject to Section 12.09During the Term of Employment and for the twenty-four (24) month period immediately thereafter, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum not issue any defamatory statements about the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 1 contract
Samples: Employment Agreement (Bally Total Fitness Holding Corp)
Noncompetition. (ai) The As an inducement to the Company to enter into this Agreement and issue the Shares hereunder, the Executive acknowledges that agrees that, during his (A) his/her period of employment with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (iiB) (x) following a Justified Termination and delivery of in the Noncompetition Notice event that Executive resigns or Executive's employment is terminated by the Company for any reason, during the period which the Company is paying the Executive severance compensation (which shall be at a rate and an amount equal to the Executive's salary and health and other insurance benefits received by the Executive immediately prior to the Termination Date), for a such period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment not to exceed one year (the time described in clauses (i) and (ii), collectively, the "Restricted Noncompete Period"), he will shall not directly or indirectly own, manage, control, participate in, consult with, render services for for, or in any manner engage in in, any business competing directly or indirectly with the business of as now or hereafter conducted by the Company or any of its Affiliates as such businesses exist or Subsidiaries which are in process as logical extensions of the date of terminationCompany's current business, within any geographical metropolitan area in which the Company or any of its Affiliates engage Subsidiaries engages or plan has definitive plans to engage in such businesses. It business; provided, that (x) the Executive shall not be considered a violation precluded from purchasing or holding publicly-traded securities of this Section 9.01 for any such entity so long as the Executive to be a passive owner of not more shall hold less than 2% of the outstanding stock units of any such class of a corporation which is publicly traded, so long as the Executive securities and has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten entity and (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (iy) the Company shall be required to continue to pay have notified the Executive of its agreement to provide such severance compensation (1) in the Base Salary for event of resignation, within five days after the Restricted Termination Date, and (2) in the event of termination, on or before the Termination Date). Notwithstanding anything contained herein to the contrary, the Executive's agreement set forth in clause (B) above shall not apply in the event that the Termination Date occurs after the fifth anniversary of the date of this Agreement.
(ii) During the Noncompete Period, paid the Executive shall not directly or indirectly through another entity (i) induce or attempt to induce any employee of the Company or any of its Subsidiaries to leave the employ of the Company or any of its Subsidiaries, or in accordance any way interfere with the Company's regular pay practices, starting with relationship between the first pay date following delivery Company or any of the Noncompetition Noticeits Subsidiaries and any employee thereof, (ii) hire any person who was an employee of the Company shall be required to pay in a lump sum the or any of its Subsidiaries at any time during Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, employment period except for such employees who have been terminated for at least six months or (iii) induce or attempt to induce any customer, supplier, licensee, franchisor or other business relation of the Executive Company or any of its Subsidiaries to cease doing business with such member, or in any way interfere with the relationship between any such customer, supplier, licensee, franchisor or business relation, on the one hand, and any member of the Company or any of its Subsidiaries, on the other hand.
(iii) The provisions of this Section 4(a) shall continue to receive major medical insurance coverage benefits from the Company's plans in effect survive any termination of this Agreement.
(iv) If, at the time of enforcement of this Section 4(a), a court of competent jurisdiction shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum duration, scope or area reasonable under such termination of employment circumstances shall be substituted for the Restricted Periodstated duration, scope or area and (iv) that such court shall be allowed to revise the Company shall continue restrictions contained herein to provide cover the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period maximum period, scope and the period during which the Executive remains a resident of Bermudaarea permitted by law.
Appears in 1 contract
Samples: Executive Stock Agreement (Town Sports International Holdings Inc)
Noncompetition. (a) The Executive acknowledges that during his employment with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates Company, their Subsidiaries and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve two (122) months years after the Date of Termination (if such termination is for Cause or as a result of the Executive's ’s resignation or leaving employment and (ynot for Good Reason) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted “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 business businesses of the Company or its Affiliates Subsidiaries as such businesses exist or are in process or being planned as of the date Date of terminationTermination, within any geographical area in which the Company or its Affiliates Subsidiaries engage or plan to engage in such businesses. Notwithstanding the foregoing, the Noncompetition Period shall be twelve (12) months following the Date of Termination if such termination is by the Company 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 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 his Base Salary for the 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 this Section 9.01 for the Executive (i) to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force , or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in serve as a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery nonemployee director of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of BermudaFairfax Financial Holdings or its subsidiary Odyssey Reinsurance.
Appears in 1 contract
Noncompetition. (a) The Executive acknowledges a. Employee agrees that during his employment with the Company, he has, term of this Agreement and will continue to, become familiar with trade secrets and other Confidential Information concerning for one (1) year after the Employment Termination Date (except that in the event of termination or nonrenewal by the Company during the period commencing six (6) months preceding the date of a Change in Control and its Affiliates and their respective predecessorsending four (4) years following the date of a Change in Control, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time neither clause (i) of this Section 10(a) nor Section 10(b) shall apply to Employee), Employee shall not (i) directly or indirectly solicit any person (natural or otherwise) to develop, construct, purchase or sell any multifamily or retail real estate or a mortgage loan financing such type of real estate if the person being solicited is or had been a developer or contractor with, or purchaser from or seller to, the Company of such type of property during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months prior to the Employment Termination Date or (ii) recruit or otherwise solicit or induce any person who is at the time an employee or consultant of the Company to terminate his employment with, or otherwise cease his relationship with, the Company, or hire any such employee or consultant who has left the employ of the Company within one (1) 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 Company whose employment has been terminated by the Company and, provided further, that if Employee has terminated his employment of his own volition, this restriction upon recruiting employees or consultants shall run for two (2) years after the termination Employment Termination Date. For example, if the term hereunder is not renewed pursuant to Section 22 hereof, then for a one-year period following the date of such nonrenewal, Employee shall be subject to this Section 10(a) and Section 10(b) hereof; provided, however, that if a Change in Control occurs during the six-month period following the date of such nonrenewal (and such nonrenewal has been at the election of the Executive's employment and (y) following an Unjustified TerminationCompany), for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses Employee shall not be subject to clause (i) of this Section 10(a) or Section 10(b) hereof from and (ii), collectively, the "Restricted 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 business of the Company or its Affiliates as such businesses exist or are in process as of after the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.Change in
Appears in 1 contract
Samples: Employment and Noncompetition Agreement (Berkshire Realty Co Inc /De)
Noncompetition. Each of the Shareholders and SPI agree that the following provisions of this Section are intimately linked to the other transactions contemplated by this Agreement, and each Shareholder and SPI acknowledge that Infodata would not enter into this Agreement without each Shareholder and SPI agreeing to be bound by the following provisions from the date hereof until the Ending Date (as hereinafter defined):
(a) The Executive acknowledges that during his employment with Except as expressly approved (which approval shall not be unreasonably withheld) by Infodata, each Shareholder and SPI (for so long as SPI remains controlled by the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby Shareholders) agrees that at any time from and after the date of this Agreement until the second anniversary of the Effective Date, that he or it shall not directly or indirectly:
(i) during the Employment Periodexcept in connection with any duties as a director, and (ii) (x) following a Justified Termination and delivery officer or employee of the Noncompetition Notice by the Company AMBIA or Infodata, divert or attempt to the Executivedivert any party who is or was an existing or prospective client, for a period ending twelve (12) months after the termination customer or supplier of the Executive's employment and (y) following an Unjustified TerminationAMBIA and/or Infodata from engaging in business with AMBIA or Infodata, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted Period"), he will not directly or indirectly own, manage, control, participate in, consult with, render provide any services for or in any manner products to or engage in any business competing that is competitive with Infodata's or AMBIA's Business;
(ii) during the one-year period immediately following the Effective Date, solicit for employment or encourage to leave their employment, in each case, either as an employee, agent or representative, any person who was during the two-year period prior to such solicitation or encouragement or is an officer, employee, agent or representative of AMBIA or Infodata;
(iii) disturb, or attempt to disturb, any business of relationship between any third party and AMBIA or Infodata; or
(iv) make any statement to any third party, including the Company press or its Affiliates as such businesses exist or are in process as of the date of terminationmedia, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force false or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")defamatory regarding either AMBIA or Infodata.
(b) Subject to Section 12.09In the event of actual breach of the provisions of this Section, Infodata, in addition to any other remedies available to it for such breach or threatened breach, including the event recovery of damages, shall be entitled to seek an injunction restraining any or all of Shareholders or SPI, as appropriate, from such conduct.
(c) If at any time any of the Company provides the Executive provisions of this Section shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to duration, area, scope of activity or otherwise, then this Section shall be considered divisible (with the Noncompetition Noticeother provisions to remain in full force and effect) and the invalid or unenforceable provisions shall become and be deemed to be immediately amended to include only such time, area, scope of activity and other restrictions, as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter, and each Shareholder and SPI expressly agrees that this Agreement, as so amended, shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
(d) The provisions of this Section shall be in addition to, and not in limitation of, any other provisions contained in any other agreement restricting competition by any or all of the Shareholders or SPI.
(e) The Shareholders and SPI shall not, directly or indirectly, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Perioddisclose, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, or (ii) use for their own benefit, or for the Company benefit of any other Person (other than, in the case of (a) below, AMBIA or an Affiliate of AMBIA), (a) any secret or confidential information, lists of clients, customers or suppliers, information relating to any clients, customers or suppliers, or any other data of or pertaining to AMBIA or to any Affiliate of AMBIA, their respective businesses or financial affairs, or their products which are not a matter of public knowledge or (b) any Infodata Confidential Information (collectively, the "Confidential Information"). Each Shareholder agrees that upon termination of any such Shareholder's employment or consulting agreement with Infodata for any reason and upon the request of Infodata on or after the Closing Date, he will immediately deliver to Infodata all original papers, books, manuals, lists, correspondence and documents containing or relating to the Confidential Information, together with all copies thereof, except that each Shareholder may keep copies of such materials as shall be required necessary to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery permit such Shareholder to prepare his tax returns or to comply with any other legal requirements. Each of the Noncompetition Noticeparties agrees that, from the date of this Agreement until the Effective Date, it will not, directly or indirectly, (iiii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment disclose, or (ii) use for its own benefit, or for the Restricted Periodbenefit of any other Person any secret or confidential information, and (iv) the Company shall continue lists of clients, customers or suppliers, information relating to provide the housing allowance set forth in Section 4.04(e) for the lesser any clients, customers or suppliers, or any other data of or pertaining to any of the Restricted Period other parties or their Affiliates, their respective businesses, financial affairs, or their services or products which are not a matter of public knowledge and the period during which the Executive remains a resident of Bermudawere obtained in connection with work performed for or related to AMBIA and/or Infodata.
Appears in 1 contract
Noncompetition. (ai) The Executive acknowledges that during his During the Employment Term and until the later of (A) the second anniversary of the Company’s initial public offering (the “Post-Closing Restricted Period”) and (B) the second anniversary of Executive’s termination of employment with the CompanyCompany Group (such actual period of restriction whether such period ends upon or after the expiration of the Post-Closing Restricted Period, he hasthe “Restricted Period”), and Executive will continue tonot, become familiar whether on Executive’s own behalf or on behalf of or in conjunction with trade secrets and other Confidential Information concerning any person, firm, partnership, joint venture, association, corporation or business organization, entity or enterprise whatsoever (“Person”), directly or indirectly solicit or assist in soliciting in competition with the Company and its Affiliates and their respective predecessors, and that his services will be Group the business of special, unique and extraordinary value to any then current or prospective client or customer with whom Executive (or Executive’s direct reports) had personal contact or dealings on behalf of the Company. In addition, the Executive hereby agrees that at any time (i) Company during the Employment Period, and one-year period preceding Executive’s termination of employment.
(ii) (x) following a Justified Termination and delivery of During the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted Period"), he Executive will not directly or indirectly own, manage, control, participate in, consult with, render services for or in any manner indirectly:
(A) engage in any business competing with the business activities involving any lithium-based battery or storage system for any commercial use (a “Competing Business”), individually or through an entity, as an employee, director, officer, owner, investor, partner, member, consultant, contractor, agent, joint venture, or otherwise, in any geographical area where any member of the Company Group engages in its business;
(B) acquire a financial interest in, or its Affiliates otherwise become actively involved with, any Competing Business, directly or indirectly, as such businesses exist an individual, partner, shareholder, officer, director, principal, agent, trustee or are in process as of consultant; or
(C) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of termination, within any geographical area in which this Agreement) between the members of the Company Group and any of their clients, customers, suppliers, partners, members or its Affiliates engage investors.
(iii) Notwithstanding anything to the contrary in this Agreement, Executive may, directly or plan to engage in such businesses. It shall not be considered indirectly, own, solely as an investment, securities of a violation of this Section 9.01 for Competing Business which is publicly traded on a national or regional stock exchange or on the over-the-counter-market if Executive to be a passive owner of not does not, directly or indirectly, own 5% or more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business securities of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")Person.
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 1 contract
Noncompetition. (a) The Executive acknowledges that during his employment with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted 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 business of the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, and (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 1 contract
Noncompetition. Each of Shareholders agrees that the following provisions of this Section are intimately linked to the other transactions contemplated by this Agreement, and each Shareholder acknowledges that Buyer would not enter into this Agreement without each Shareholder agreeing to be bound by the following provisions from the date hereof until the Ending Date (as hereinafter defined):
(a) The Executive acknowledges that during his employment with the CompanyExcept as expressly approved (which approval shall not be unreasonably withheld) by Buyer, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby each Shareholder agrees that at from and after the date of this Agreement until two (2) years after the date any time (i) during employment or consulting arrangement between such Shareholder and Buyer terminates, unless a Shareholder-employee is terminated without Cause, as defined in the Employment PeriodAgreements attached hereto as Exhibits 5.4.1 and 5.4.2, and (ii) (x) following a Justified Termination and delivery in which case the noncompetition provisions of the Noncompetition Notice by the Company to the Executive, applicable Employment Agreement and this Section 6.2 shall not apply for a any period ending twelve (12) months after the termination of the Executive's employment of such Shareholder and Buyer (ywith such termination date being referred to herein as the "Ending Date" with respect to each Shareholder), that he or she shall not directly or indirectly:
(i) except in connection with any duties as an officer or employee of Buyer, solicit, divert or attempt to solicit or divert any party who is or was a client, customer or supplier of Seller and/or Buyer, or accept any business or remuneration, directly or indirectly, from any party who is or was a client, customer or supplier of Seller and/or Buyer;
(ii) during the one-year period immediately following an Unjustified Termination, for a period ending twelve (12) months after the date of termination of the Executive's employment or consulting arrangement, employ, solicit for employment or encourage to leave their employment, in each case, either as an employee, agent or representative, any person who was during the two-year period prior to such employment, solicitation or encouragement or is an officer, employee, agent or representative of Seller or Buyer;
(the time described in clauses (iiii) and (ii)disturb, collectivelyor attempt to disturb, the "Restricted 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 relationship between any third party and Seller or Buyer; or
(iv) make any statement to any third party, including the business of the Company press or its Affiliates as such businesses exist media, likely to result in adverse publicity for Seller or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")Buyer.
(b) Subject to Section 12.09In the event of actual or threatened breach of the provisions of this Section, Buyer, in addition to any other remedies available to it for such breach or threatened breach, including the event recovery of damages, shall be entitled to an injunction restraining any or all of Shareholders, as appropriate, from such conduct.
(c) If at any time any of the Company provides the Executive provisions of this Section shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to duration, area, scope of activity or otherwise, then this Section shall be considered divisible (with the Noncompetition Noticeother provisions to remain in full force and effect) and the invalid or unenforceable provisions shall become and be deemed to be immediately amended to include only such time, area, scope of activity and other restrictions, as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter, and each Shareholder expressly agrees that this Agreement, as so amended, shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
(d) The provisions of this Section shall be in addition to, and not in limitation of, any other provisions contained in any other agreement restricting competition by any or all of Shareholders.
(e) Shareholders shall not, directly or indirectly, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Perioddisclose, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, or (ii) use for their own benefit, or for the Company benefit of any other Person (other than, in the case of (a) below, the Seller or an Affiliate of the Seller), (a) any secret or confidential information, lists of clients, customers or suppliers, information relating to any clients, customers or suppliers, or any other data of or pertaining to the Seller or to any Affiliate of the Seller, their respective businesses or financial affairs, or their products which are not a matter of public knowledge or (b) any Buyer Confidential Information (collectively, the "Confidential Information"). Each Shareholder agrees that upon termination of any such Shareholder's employment or consulting agreement with Buyer for any reason and upon the request of Buyer on or after the Closing Date, he or she will immediately deliver to Buyer all original papers, books, manuals, lists, correspondence and documents containing or relating to the Confidential Information, together with all copies thereof, except that each Shareholder may keep copies of such materials as shall be required necessary to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue permit such Shareholder to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue prepare his or her tax returns or to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermudacomply with any other legal requirements.
Appears in 1 contract
Noncompetition. (a) The Executive acknowledges a. Employee agrees that during his employment with the Company, he has, term of this Agreement and will continue to, become familiar with trade secrets and other Confidential Information concerning for one (1) year after the Employment Termination Date (except that in the event of termination or nonrenewal by the Company during the period commencing six (6) months preceding the date of a Change in Control and its Affiliates and their respective predecessorsending two (2) years following the date of a Change in Control, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time neither clause (i) of this Section 11(a) nor Section 11(b) shall apply to Employee), Employee shall not (i) directly or indirectly solicit any person (natural or otherwise) to develop, construct, purchase or sell any multifamily or retail real estate or a mortgage loan financing such type of real estate if the person being solicited is or had been a developer or contractor with, or purchaser from or seller to, the Company of such type of property during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months prior to the Employment Termination Date or (ii) recruit or otherwise solicit or induce any person who is at the time an employee or consultant of the Company to terminate his employment with, or otherwise cease his relationship with, the Company, or hire any such employee or consultant who has left the employ of the Company within one (1) 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 Company whose employment has been terminated by the Company and, provided further, that if Employee has terminated her employment of her own volition, this restriction upon recruiting employees or consultants shall run for two (2) years after the termination Employment Termination Date. For example, if the term hereunder is not renewed pursuant to Section 23 hereof, then for a one-year period following the date of such nonrenewal, Employee shall be subject to this Section 11(a) and Section 11(b) hereof; provided, however, that if a Change in Control occurs during the six-month period following the date of such nonrenewal (and such nonrenewal has been at the election of the Executive's employment and (y) following an Unjustified TerminationCompany), for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses Employee shall not be subject to clause (i) of this Section 11(a) or Section 11(b) hereof from and (ii), collectively, the "Restricted 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 business of the Company or its Affiliates as such businesses exist or are in process as of after the date of terminationsuch Change in Control. By way of additional example, within any geographical area if a Change in which Control occurs and an Employment Termination Date occurs (other than an Employment Termination Date occurring as a result of Employee's election not to renew this Agreement) during the Company or its Affiliates engage or plan to engage two-year period commencing on the date of the Change in such businesses. It Control, Employee shall not be considered a violation subject to clause (i) of this Section 9.01 for 11(a) or Section 11(b) hereof from and after the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Employment Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the Date."Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 1 contract
Samples: Employment and Noncompetition Agreement (Berkshire Realty Co Inc /De)
Noncompetition. In the event (a1) The Executive acknowledges that the Executive, during his employment with the three (3) year period following the Termination Date, without the prior written consent of the Company, he hasengages directly or indirectly, and will continue toas a licensee, become familiar owner, manager, consultant, officer, employee, director, investor or otherwise, in any business in material competition with trade secrets and other Confidential Information concerning the Company (“Competitive Activity”) and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, (2) the Executive hereby agrees that at elects to continue to engage in any time such Competitive Activity for thirty (i30) during the Employment Period, and (ii) (x) days following a Justified Termination and delivery of the Noncompetition Notice notice thereof by the Company to the Executive, then all rights hereunder of the Executive and any person claiming under or through him shall thereupon terminate as of said thirty (30) days following delivery of said notice, and no person shall be entitled thereafter to receive any payments or benefits hereunder (except for the special health care benefit under Article 6.1 and all other benefits under employee benefit plans or programs as provided in Articles 3.4, 5, 6, and 9 which have been earned or otherwise fixed or determined to be payable prior to such termination), and the Executive shall immediately pay to the Company an amount equal to the product of the lump sum severance benefit received by the Executive pursuant to Article 11.2 multiplied by a period ending twelve fraction, the numerator of which equals 1095 reduced by the number of days between the Executive’s termination of employment and the date the Executive engages in the Competitive Activity and the denominator of which equals 1095. The Company and the Executive acknowledge and agree that nothing in this Article 13.3 shall be construed to prevent the Executive from engaging in Competitive Activity if the Executive so elects (12) months after the thereby resulting in termination of the Executive's employment ’s rights and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination repayment of the Executive's employment (the time severance amounts as described in clauses (i) and (iiabove), collectively, that the "Restricted Period"), he will Executive shall not directly be deemed to have breached this Article or indirectly own, manage, control, participate in, consult with, render services for or in any manner Agreement solely by electing to engage in any such Competitive Activity, and that the Company may not seek to enjoin or otherwise prevent the Executive from engaging in any such Competitive Activity. This Article shall not apply to a passive investment by the Executive constituting ownership of less than five percent (5%) of the equity of any entity engaged in any business competing with described in this Article 13.3. The foregoing provisions of this Article 13.3 shall not apply on or after a termination of employment which occurs within three years after a Change of Control; provided that during the business period beginning on such Termination Date and ending on the first anniversary of the Termination Date, Executive shall not, directly or indirectly:
(a) encourage any employee or agent of the Company to terminate his or its Affiliates as such businesses exist or are in process as of her relationship with the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").Company;
(b) Subject solicit the employment or engagement as a consultant or adviser, of any employee or agent of the Company, or cause or encourage any Person to Section 12.09do any of the foregoing;
(c) establish (or take preliminary steps to establish) a business with, in or encourage others to establish (or take preliminary steps to establish) a business with, any employee or agent of the event Company; or
(d) interfere with the relationship of the Company provides the Executive with the Noncompetition Noticewith, (i) the Company shall be required or endeavor to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits entice away from the Company's plans in effect , any Person who or which at the any time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and during the period during which commencing one year prior to the Executive remains Termination Date was or is a resident of Bermudamaterial customer or material supplier of, or maintained a material business relationship with, the Company.
Appears in 1 contract
Samples: Employment Agreement (Russell Corp)
Noncompetition. (a) The Executive acknowledges Parent agrees that during his employment with for a period of five (5) years following the CompanyClosing Date, he hasParent shall not, and will continue shall cause its Affiliates not to, become familiar directly or indirectly (other than in connection with trade secrets and other Confidential Information concerning performing obligations pursuant to a Transaction Document): (x) engage in a Competitive Business, (y) license to any Person for use in any Competitive Product any registered Intellectual Property that is owned or controlled by Parent or its Affiliates, or (z) acquire any ownership interest in, or own or control, any Competitive Business or any of the Company and businesses or entities identified on Schedule 5.15; provided, however, the foregoing shall not be construed to prevent or otherwise restrict Parent or its Affiliates from owning up to ten percent (10%) of the outstanding equity securities of any entity with equity securities listed or traded on a national stock exchange or stock market. Notwithstanding the foregoing, during the five (5)-year period following the Closing Date, Parent or any of its Affiliates may, subject to Section 5.15(b), acquire, integrate and their respective predecessors, and that his services will be operate the business of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, Covidien Plc and (ii) an interest in a third party (a “Target”) that operates a division or other portion of its business (a “Division”) that is a Competitive Business if the combined annual revenues of the Target and its Subsidiaries derived from the ENT Competitive Business represent less than twenty-five percent (25%) of the combined total annual revenues of the Target and its Subsidiaries for the most recent full fiscal year then ended, provided that in the event of an acquisition described in this subpart (ii) (a “Triggering Transaction”), Parent or its Affiliates shall provide to Company, as the Company’s sole and exclusive remedy in such circumstance, a right of first refusal (the “Right of First Refusal”) to acquire (or cause one of its Affiliates to acquire) from Parent or its Affiliates that portion of the Division that engages in a ENT Competitive Business for a cash payment equal to the Division FMV (as defined below) under the following terms and conditions:
(i) Parent or its Affiliates shall give Company written notice no more than thirty (30) days following the closing of a Triggering Transaction, including a full and complete description of the Division and the terms under which the Target was acquired, and access to the data room or other compilation of financial, operational and other due diligence information regarding the Division, upon execution of a confidentiality agreement reasonably acceptable to the parties.
(ii) The fair market value of the Division (the “Division FMV”) shall be agreed to by the parties after good faith discussions. Should the parties be unable to determine the Division FMV within forty-five (45) days after delivery of the notice described in the preceding subsection (a)(i), then an independent accounting firm or valuation expert (the “Valuation Firm”) shall be selected to determine the Division FMV. The Valuation Firm’s determination of the Division FMV (A) shall take into account (x) following a Justified Termination the Division’s size, revenue and delivery of the Noncompetition Notice by the Company profitability relative to the ExecutiveTarget, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Terminationall of the terms and conditions of the proposed sale of the Division to Company, including the presence of, absence of or limitation on transition services or representations and warranties of the kind contemplated by Section 5.15(a)(iv) below, and (B) shall be based on valuation metrics derived by reference to the terms of the purchase and sale of the Shares and the Asset Sale, taken as a whole, without reference to the valuation metrics of Parent’s or its Affiliates’ acquisition of Target. The parties shall share the cost of the Valuation Firm’s work equally and the Valuation Firm’s determination shall be final.
(iii) Company shall notify Parent within thirty (30) days after determination of the Division FMV if it intends to exercise the Right of First Refusal hereunder.
(iv) The parties shall use commercially reasonable best efforts, including working diligently and in good faith, to negotiate a definitive purchase agreement (and such consents, documents or other matters reasonably necessary) for a period ending twelve the acquisition by Company of the Division, and if such definitive purchase agreement is entered into, to close such acquisition within one hundred twenty (12120) months days after the termination Company’s exercise of the Executive's employment (the time described in clauses (i) Right of First Refusal, subject to Section 5.15(a)(v). Any definitive agreements would include representations, warranties, covenants and (ii), collectively, the "Restricted 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 business of the Company indemnification rights from Parent or its Affiliates that are at least as such businesses exist or are in process as of the date of termination, within any geographical area in which favorable to the Company as the representations, warranties, covenants and indemnification rights Parent or its Affiliates engage received with respect to the Division, or plan if more favorable, the Target, and any definitive agreements would not include any transition services arrangements from Parent or its Affiliates except to engage in the extent that Parent or its Affiliates are able to pass through to Company transition services Parent or its Affiliates are entitled to receive from Target with respect to the Division. During such businesses. It time, Parent or its Affiliates shall not be considered divest or otherwise modify the Division.
(v) If Company is required to obtain regulatory approvals for its purchase of the Division from Parent or its Affiliates, then Company shall proceed expeditiously to obtain the approvals, Parent and its Affiliates will cooperate with Company to obtain the approvals, and the 120-day period provided in Section 5.15(a)(iv) will commence upon issuance of the approvals in a violation form reasonably satisfactory to Company.
(vi) If Company declines in writing to exercise the Right of First Refusal or does not exercise the Right of First Refusal within the time period set forth in Section 5.15(a)(iii), then Parent shall, or shall cause its Affiliates to, expend commercially reasonable best efforts to divest, sell or otherwise dispose of the Division to an unrelated third party over which Parent and its Affiliates exercise no control within one hundred twenty (120) days after Company declining in writing to exercise its Right of First Refusal or the expiration of the time period set forth in Section 5.15(a)(iii), whichever occurs first.
(vii) Notwithstanding anything to the contrary in this Section 9.01 for the Executive 5.15, Parent shall, and shall cause its Affiliates to be a passive owner of not more than 2% (A) cease any conduct of the outstanding stock ENT Competitive Business within two (2) years following the consummation of any class Triggering Transaction and (B) in no event use the “Xomed” or any related xxxx in connection with the conduct of a corporation which is publicly tradedthe ENT Competitive Business.
(viii) This Right of First Refusal shall continue in full force and effect during the period of five (5) years following the Closing Date with respect to any subsequent Triggering Transaction(s) notwithstanding any prior exercise or failure to exercise the Right of First Refusal with respect to any prior Triggering Transaction(s).
(ix) The parties shall execute, so long as and shall cause their respective Affiliates to execute, all documents reasonably necessary to effectuate the Executive has no active participation in terms hereof and effectuate the business closing on Company’s acquisition of the Division should it exercise its Right of First Refusal hereunder and the parties enter into definitive agreement with respect to such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")acquisition.
(b) Subject Parent shall not, and shall cause its Affiliates not to Section 12.09, in for a period of five (5) years following the event the Company provides the Executive with the Noncompetition Notice, Closing Date (i) use the Company shall be required “Xomed” or any related xxxx or (ii) use any product “SKUs” used prior to continue the Closing Date for any of the Products, in each case on or in connection with the exploitation of any surgical instrument used in any laprascopic procedure that is independent, re-usable, handheld, non-powered, non-energized and/or not connected to pay the Executive the Base Salary for the Restricted Period, paid a monitoring device that is part of a business of Covidien Plc acquired by Parent or its Affiliates or a Division acquired by Parent or its Affiliates in accordance with this Section 5.15 (each, an “Acquired Laproscopic Business”).
(c) For a period of two (2) years from and after the Company's regular pay practicesClosing Date, starting with Parent shall not, and shall cause its Affiliates not to, directly or indirectly, recruit, offer employment, employ, engage as a consultant, lure or entice away, or in any other manner persuade or attempt to persuade to leave the first pay date following delivery employ of the Noncompetition NoticeCompany or any of its Affiliates, (iiany Transferred Employee, the individual listed in Schedule 5.15(c) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery or any other Person who as of the Noncompetition Noticedate hereof or as of the Closing is a Company Employee.
(d) If the final judgment of a court of competent jurisdiction declares that any term or provision of this Section 5.15 is invalid or unenforceable, (iii) the Executive shall continue parties hereto agree that the court making the determination of invalidity or unenforceability will have the power to receive major medical insurance coverage benefits from reduce the Company's plans in effect at 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 will be enforceable as so modified after the expiration of the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during within which the Executive remains a resident of Bermudajudgment may be appealed.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Integra Lifesciences Holdings Corp)
Noncompetition. (a) The Executive acknowledges that during his employment with For a period of 10 years commencing on the Companydate hereof (the "Term"), he haswithout the prior written approval of Buyer, Seller shall not, and will continue cause its Affiliates not to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessorsdirectly or indirectly, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted Period"), he will not directly or indirectly own, manage, control, participate inoperate or otherwise participate, consult withfranchise or assist in the business of any Prohibited Facility located in the Territory, render (ii) own, manage, control, operate, be connected with as an employee or consultant for any Person owning, managing, controlling, operating or otherwise participating or assisting in the business of any Prohibited Facility located in the Territory, or (iii) license, franchise or otherwise authorize any Person (other than Buyer and its licensees) to conduct business under the marks Pure, Protech or Firebird or under any of the Marks (or sell any products or provide any services for in connection with the marks Pure, Protech or Firebird or the Marks and/or the Service Marks (as such terms are defined in the Trademark License Agreement)) at any manner engage Prohibited Facility located in the Territory or otherwise utilize any business competing of the Marks and/or Service Marks or any commercial symbol similar thereto in connection with the business of any Prohibited Facility located in the Company Territory; PROVIDED HOWEVER, that nothing in this Agreement shall prohibit (x) Seller or its Affiliates as such businesses exist licensee or are in process as assignee of the marks Pure or Firebird from licensing the marks Pure and/or Firebird to any Prohibited Facility in the Southeastern Area at any time after a date of termination, within on which Buyer is neither (A) selling motor fuel at any geographical area Auto/Truckstop or Fuel Stop in which the Company Southeastern Area under one or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock Marks nor (B) prominently displaying one or more of the Marks at any class of a corporation which is publicly traded, so long as the Executive has no active participation Auto/Truckstop or Fuel Stop in the business of such corporation. The terms of Section 9.01(a)(ii)(xSoutheastern Area and (y) shall be of no force or effect unless the Company notifies the Executive in writing no later Seller's jobbers, distributors and marketers from selling products other than ten (10) business days following a Justified Termination of its intention motor fuel to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")any Prohibited Facility.
(b) Subject to During the Term, Seller shall not, and will cause its Affiliates not to, directly or indirectly, materially expand any Excluded Facility that is an Auto/Truckstop or a Fuel Stop owned or operated by Seller or its Affiliates or otherwise materially alter the products and/or services sold by or through any such Excluded Facility; PROVIDED, HOWEVER, that nothing in this Section 12.092 shall prohibit Seller or its Affiliates from repairing or replacing any existing structures, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time fixtures or other assets of such termination an Excluded Facility, damaged or worn by reason of employment for the Restricted Periodcasualty or wear and tear, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermudawith comparable structures, fixtures or other assets.
Appears in 1 contract
Noncompetition. (a) The Executive acknowledges that during his employment with In consideration of the Companypayments, he has, and will continue to, become familiar with trade secrets benefits and other Confidential Information concerning obligations of the Company and its Affiliates and their respective predecessorsto Executive pursuant to this Agreement, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby covenants and agrees that that, at any time (i) all times during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice which Executive is employed by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment Group and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, during the "Restricted Period"" (as defined below), he will not Executive shall not, in any place in the world, directly or indirectly ownindirectly, own any interest in, manage, control, participate inin (whether as an officer, director, manager, employee, partner, equity holder, member, agent, representative or otherwise), consult with, render services for for, or in any other manner engage in any business competing with engaged in anywhere in the world, by the Company and its Subsidiaries (collectively, the "Company Group") as conducted by the Company Group as of as of the date of Executive's termination, other than any business that is not directly related to the business conducted by the Company Group as of the date hereof as such business may be extended or expanded, or proposed to be extended or expanded prior to date of Executive's termination; provided, that nothing herein shall prohibit Executive from investing in stocks, bonds, or other securities in any business if: (i) such stocks, bonds, or other securities are listed on any United States securities exchange or are publicly traded in an over the counter market, and such investment does not exceed, in the case of any capital stock of any one issuer two percent (2%) of the issued and outstanding capital stock or in the case of bonds or other securities, two percent (2%) of the aggregate principal amount thereof issued and outstanding, or (ii) such investment is completely passive and no control or influence over the management or policies of such business is exercised. For purposes of this Section 7(a), the business of the Company Group shall only be "proposed to be extended or its Affiliates as such businesses exist or are in process as expanded" if: (i) Executive has actual knowledge of the date proposed extension or expansion of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies Group on or prior to the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Companydate that Executive's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, employment is terminated; (ii) the Company shall be required to pay proposed extension or expansion of the business is set forth in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery written business plan of the Noncompetition Notice, Company; and (iii) such written business plan has been adopted by the Board not later than thirty (30) days following the date that Executive's employment is terminated and Executive shall continue to receive major medical insurance coverage benefits from the Company's plans is notified in effect at the time writing of such termination of employment for adoption promptly following the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermudasame.
Appears in 1 contract
Noncompetition. During the Employment Period and for a period for two (2) years thereafter (the RESTRICTED PERIOD"), the Executive shall not directly or indirectly compete with the Company by owning, managing, managing, controlling or participating in the ownership, management or control of or be employed by or engaged in any Competitive Business (as defined herein) in any location in the United States in which the Company is doing business (the "TRADE AREA"). As used herein, a "COMPETITIVE BUSINESS" is any other corporation, partnership, proprietorship, firm or other business entity which is engaged in a "core business of the Company." A "core business of the Company" is the development, manufacture, distribution or sale of a particular type of product, reagent or kit involved in the detection or preparation of nucleic acids in which the Company or DNA Sciences, Inc., a California corporation, has invested or expended more than Two Hundred Thousand Dollars ($200,000) in the eighteen (18) months prior to the "Measurement Date" (as defined herein). The MEASUREMENT DATE shall be the point in time during the Restricted Period that the Executive becomes associated with a Competitive Business whether such association is by employment, engagement or by directly or indirectly owning, managing, controlling or participating in the ownership, management or control of a Competitive Business. In the event of any period of investment or expenditure which commenced less than eighteen (18) months from the Measurement Date the amount invested or expended shall be annualized for such eighteen (18) month period. Notwithstanding the above, the Executive may become employed by or engaged by a "Competitive Business" so long as the Executive (a) The was not directly involved with or participating in the areas of "core business of the Company" which makes the other business a "Competitive Business", or (b) if the Executive acknowledges is not involved, directly, in that during his employment part of the Competitive Business which is competitive with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be "core business of special, unique and extraordinary value to the Company. ." In addition, the Executive hereby agrees that at may be employed by or engaged by any time (i) during business which after the Employment Period, and (ii) (x) following date hereof becomes a Justified Termination and delivery of "Competitive Business," if the Noncompetition Notice by employment or engagement occurred prior to the Company to the Executive, for entering into a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the new "Restricted 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 core business of the Company Company" (whether by acquisition or its Affiliates as through the Company's own initiative), which caused such businesses exist or are in process as of the date of terminationother business to become a Competitive Business. Also, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall this section is not be considered a violation of this Section 9.01 for violated if the Executive to be a passive owner of not owns no more than 25% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")traded Competitive Business.
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 1 contract
Samples: Executive Employment Agreement (Genetic Vectors Inc)
Noncompetition. (a) The 6.1 Executive acknowledges covenants and agrees that during the Employment Period or so long as he is receiving Base Compensation pursuant to Section 5.6 of this Agreement and continuing for a twelve (12) month period thereafter if and only if Executive terminates his employment either (i) after two (2) years pursuant to Section 1.2 of this Agreement or (ii) Executive elects not to extend this Agreement after the completion of the initial four (4) year period (without regard to any extensions) as set forth under Section 1.2 of this Agreement, or (iii) Executive voluntarily resigns other than pursuant to Section 1.2 of this Agreement, he will not directly (as agent, employee, advisor, director, officer, stockholder, partner or individual proprietor, or as an investor who has made an advance, loan or contributions to capital), compete with the Company or with any wholly owned subsidiaries or affiliated companies, if any, in the Company's business. Notwithstanding the foregoing, the parties hereto acknowledge and agree that the prohibition on competing with the Company contemplated pursuant to this Section 6 shall not include the ownership of any investment security listed on a national securities exchange or traded in the over-the-counter market provided Executive does not participate in the management of such entity.
6.2 Executive covenants and agrees that during the Employment Period or so long as he is receiving Base Compensation pursuant to Section 5.6 of this Agreement and continuing for a twelve (12) month period thereafter if and only if Executive terminates his employment either (i) after two (2) years pursuant to Section 1.2 of this Agreement or (ii) Executive elects not to extend this Agreement after the completion of the initial four (4) year period (without regard to any extensions) as set forth under Section 1.2 of this Agreement, he will not contact or solicit business that competes directly with the Company's business from persons who, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted 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 business were customers of the Company or its Affiliates as wholly owned subsidiaries or affiliated companies, if any, or induce such businesses exist or are in process as of the date of termination, within persons to do business with any geographical area in which person other than the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly tradedaffiliated companies, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")if any.
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 1 contract
Samples: Employment Agreement (X Ceed Inc)
Noncompetition. (a) The Executive acknowledges a. Employee agrees that during his employment with the Company, he has, term of this Agreement and will continue to, become familiar with trade secrets and other Confidential Information concerning for one (1) year after the Employment Termination Date (except that in the event of termination or nonrenewal by the Company during the period commencing six (6) months preceding the date of a Change in Control and its Affiliates and their respective predecessorsending two (2) years following the date of a Change in Control, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time neither clause (i) of this Section 10(a) nor Section 10(b) shall apply to Employee), Employee shall not (i) directly or indirectly solicit any person (natural or otherwise) to develop, construct, purchase or sell any multifamily or retail real estate or a mortgage loan financing such type of real estate if the person being solicited is or had been a developer or contractor with, or purchaser from or seller to, the Company of such type of property during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months prior to the Employment Termination Date or (ii) recruit or otherwise solicit or induce any person who is at the time an employee or consultant of the Company to terminate his employment with, or otherwise cease his relationship with, the Company, or hire any such employee or consultant who has left the employ of the Company within one (1) 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 Company whose employment has been terminated by the Company and, provided further, that if Employee has terminated his employment of his own volition, this restriction upon recruiting employees or consultants shall run for two (2) years after the termination Employment Termination Date. For example, if the term hereunder is not renewed pursuant to Section 22 hereof, then for a one-year period following the date of such nonrenewal, Employee shall be subject to this Section 10(a) and Section 10(b) hereof; provided, however, that if a Change in Control occurs during the six-month period following the date of such nonrenewal (and such nonrenewal has been at the election of the Executive's employment and (y) following an Unjustified TerminationCompany), for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses Employee shall not be subject to clause (i) of this Section 10(a) or Section 10(b) hereof from and (ii), collectively, the "Restricted 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 business of the Company or its Affiliates as such businesses exist or are in process as of after the date of terminationsuch Change in Control. By way of additional example, within any geographical area if a Change in which Control occurs and an Employment Termination Date occurs (other than an Employment Termination Date occurring as a result of Employee's election not to renew this Agreement) during the Company or its Affiliates engage or plan to engage two-year period commencing on the date of the Change in such businesses. It Control, Employee shall not be considered a violation subject to clause (i) of this Section 9.01 for 10(a) or Section 10(b) hereof from and after the Executive to be a passive owner Employment Termination Date." The first sentence of not more than 2% Section 11 of the outstanding stock of any class of a corporation which Agreement is publicly traded, so long amended in its entirety to read as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless follows: "Employee acknowledges that the Company notifies would not have an adequate remedy at law for money damages if the Executive covenants contained in writing no later than ten Sections 8 (10Non-Disclosure), 9 (Return of Company Property) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(xor 10 (Noncompetition) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive were not complied with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with their terms, and that any breach or threatened breach thereof would result in immediate and irreparable injury to the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda."
Appears in 1 contract
Samples: Employment and Noncompetition Agreement (Berkshire Realty Co Inc /De)
Noncompetition. (a) The Executive acknowledges that during his employment with In consideration of the Companypayments, he has, and will continue to, become familiar with trade secrets benefits and other Confidential Information concerning obligations of the Company and its Affiliates and their respective predecessorsto Executive pursuant to this Agreement, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby covenants and agrees that that, at any time (i) all times during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice which Executive is employed by the Company to Group and during the Executive, for a period ending twelve “Restricted Period” (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (iias defined below), collectivelyExecutive shall not, in any place in the "Restricted Period")world, he will not directly or indirectly ownindirectly, own any interest in, manage, control, participate inin (whether as an officer, director, manager, employee, partner, equity holder, member, agent, representative or otherwise), consult with, render services for for, or in any other manner engage in any business competing with engaged in anywhere in the world, by the Company and its Subsidiaries (collectively, the “Company Group”) as conducted by the Company Group as of as of the date of Executive’s termination, other than any business that is not directly related to the business conducted by the Company Group as of the date hereof as such business may be extended or expanded, or proposed to be extended or expanded prior to date of Executive’s termination; provided, that nothing herein shall prohibit Executive from investing in stocks, bonds, or other securities in any business if: (i) such stocks, bonds, or other securities are listed on any United States securities exchange or are publicly traded in an over the counter market, and such investment does not exceed, in the case of any capital stock of any one issuer two percent (2%) of the issued and outstanding capital stock or in the case of bonds or other securities, two percent (2%) of the aggregate principal amount thereof issued and outstanding, or (ii) such investment is completely passive and no control or influence over the management or policies of such business is exercised. For purposes of this Section 7(a), the business of the Company Group shall only be “proposed to be extended or its Affiliates as such businesses exist or are in process as expanded” if: (i) Executive has actual knowledge of the date proposed extension or expansion of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies Group on or prior to the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, that Executive’s employment is terminated; (ii) the Company shall be required to pay proposed extension or expansion of the business is set forth in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery written business plan of the Noncompetition Notice, Company; and (iii) such written business plan has been adopted by the Board not later than thirty (30) days following the date that Executive’s employment is terminated and Executive shall continue to receive major medical insurance coverage benefits from the Company's plans is notified in effect at the time writing of such termination of employment for adoption promptly following the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermudasame.
Appears in 1 contract
Samples: Employment Agreement
Noncompetition. (a) The 7.1 Competitive Activity. Executive acknowledges that shall be deemed to have engaged in "Competitive Activity" if, during his the period commencing on the date hereof and ending on the second anniversary of the date Executive's employment with the CompanyInvestors or its subsidiaries terminates, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for himself or on behalf of any other person, firm, partnership, corporation, or other entity, engages, directly or indirectly, as an executive, agent, representative, consultant, partner, shareholder or holder of any other financial interest, in any business that competes with Investors or its subsidiaries in the line of business Executive is employed in by Investors or its subsidiaries (as applicable), as such business is described in any employment or severance agreement then in effect between Executive and Investors or one of its subsidiaries or, if no such agreement is then in effect, as described on Schedule II attached hereto (a period ending twelve (12) months after the termination of the "Competing Business"), it being understood and agreed that Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses activities shall not satisfy this clause (i) where Executive is employed by a person, firm, partnership, corporation, or other entity engaged in a variety of activities, including the Competing Business, and (ii), collectively, the "Restricted Period"), he will Executive is not directly engaged in or indirectly own, manage, control, participate in, consult with, render services for or in any manner engage in any business competing with the business of the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 responsible for the Competing Business of such entity. Executive to may also, without satisfying clause, (i) be a passive owner of not more than 2% of the outstanding publicly traded stock of any class of a corporation which is publicly traded, Competing Business so long as the Executive has no active participation in the business of such corporation. The terms entity, except to the extent permitted above; or (ii) Executive (A) directly or indirectly through another entity, induces or attempts to induce any employee of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies or its subsidiaries to leave the Executive employ of the Company or its subsidiaries, or in writing no later than ten (10) business days following a Justified Termination any way interfere with the relationship between the Company or any of its intention subsidiaries and any employee thereof, (B) knowingly hires any person who was an employee of the Company or any of its subsidiaries within 180 days prior to enforce the provisions time such employee was hired by Executive, (C) induces or attempts to induce any customer, supplier, licensee or other business relation of Section 9.01(a)(ii)(xthe Company or any of its subsidiaries to cease doing business with the Company or its subsidiaries or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and the Company or any subsidiary or (D) (directly or indirectly acquires or attempt to acquire an interest in any business relating to the "Noncompetition Notice").
(b) Subject business of the Company or any of its subsidiaries and with which the Company or any of its subsidiaries has entertained discussions or has requested and received information relating to Section 12.09, the acquisition of such business by the Company or its subsidiaries in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance one-year period immediately preceding Executive's termination of employment with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 1 contract
Samples: Unit Subscription Agreement (Michael Foods Inc/New)
Noncompetition. Except as set forth below or as otherwise consented to or approved in writing by Buyer, the Seller and each of the Shareholders (and Xxx X. Xxxxxxx, the sole shareholder of JPF Well Service, Inc.) agree that for a period of 60 months following the date hereof, such party will not, directly or indirectly, acting alone or as a member of a partnership or as an officer, director, employee, consultant, representative, a holder of, or investor in as much as 3% of any security of any class of any corporation or other business entity (a) The Executive acknowledges that during his employment with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted 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 in competition with the business or businesses conducted by the Seller on or before the date hereof or by Buyer (or Buyer's affiliates) on or after the date hereof, or 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 the following counties in the state of Texas: Aransas, Austin, Bastrop, Bee Xxxx, Brazoria, Brazos, Burleson, Caldwell, Xxxxxxx, Colorado, XxXxxx, Falls, Fayette, Fort Bend, Goliad, Xxxxxx, Xxxxxxxxx, Gonzales, Harris, Jackson, Karnes, Lavaca, Xxx, Xxxx, Limestone, Matagora, Madison, McLennan, Milam, Montgomery, Nueces, Refugio, Robertson, San Patricio, Travis, Victoria, Walker, Waller, Washington, Wharton, and Xxxxxxxxxx, ; (b) request any present customers or suppliers of the Company Seller or its Affiliates 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, firm or corporation any trade, technical or 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 or her employment. The Seller and each of the Shareholders agree that if either the length of time or geographical area as set forth in this Section 3.1 is deemed too restrictive in any court proceeding, the court may reduce such businesses exist or restrictions to those which it deems reasonable under the circumstances. The obligations expressed in this Section 3.1 are in process as addition to any other obligations that the Seller and the Shareholders may have under the laws of any state requiring a corporation selling its assets (or a 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 Shareholders 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 Shareholders of the date 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 Shareholders from such breach or threatened breach. If any provisions of terminationthis Section 3.1 are held to be invalid or against public policy, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It remaining provisions shall not be considered a violation of affected thereby. The Seller and the Shareholders acknowledge that the covenants set forth in this Section 9.01 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 $375,000 payable by Buyer on the date hereof by wire transfer of immediately available funds to the Seller and the Shareholders, in those amounts and to those accounts specified in Schedule 3.1 hereto and (iii) for other good and valuable consideration, the Executive to be a passive owner receipt and adequacy of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as hereby acknowledged. Notwithstanding anything to the Executive has no active participation contrary stated in the business of such corporation. The terms of this Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice3.1, (i) the Company shall be required to continue to pay conduct by the Executive the Base Salary for the Restricted Period, paid business entities listed in accordance with the Company's regular pay practices, starting with the first pay date following delivery Schedule 3.1 hereto of the Noncompetition Notice, activities set forth opposite such entities' names (the "Permitted Business") shall not be a violation by Xxx X. Xxxxxxx and the individual Shareholders of clause (a) of this Section 3.1 and (ii) the Company shall be required to pay solicitation by the business entities listed in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery Schedule 3.1 hereto of any present customer or supplier of the Noncompetition NoticeSeller or any customers of Buyer (or Buyer's Affiliates) in connection with the conduct of their Permitted Business, (iii) but only their Permitted Business and not the Executive business sold hereunder, shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period not be a violation by Xxx X. Xxxxxxx and the period during which the Executive remains a resident individual Shareholders of Bermudaclause (b) of this Section 3.1.
Appears in 1 contract
Noncompetition. (a) The Executive acknowledges that during his employment with From and after the CompanyEffective Time, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning until the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery fourth anniversary of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment Closing Date (the time described in clauses (i) and (ii), collectively, the "Restricted Covenant Period"), he each of the Sellers agree that neither it nor any of its respective subsidiaries will not anywhere in the world (i) directly or indirectly ownengage in the Fastener Business, or (ii) directly or indirectly invest in, manage, control, participate in, consult with, render services for operate, participate in or control as a partner, stockholder or consultant, or otherwise have an equity interest exceeding five percent in, any Person that competes with the Fastener Business (the "Noncompetition Agreement"). Without limiting the foregoing, during the Covenant Period, none of the Sellers or any of their respective subsidiaries shall (i) directly or indirectly serve as a consultant to any of the Sellers', the Buyer's or any of their then subsidiaries competitors that compete with the Fastener Business, or (ii) engage or participate in any manner engage in effort or act to induce any of the customers, suppliers, associates or independent contractors of the Fastener Business, the Buyer or any of the Buyer's subsidiaries to take any action or refrain from taking any action or inaction that could be reasonably be foreseen to be disadvantageous to the Fastener Business, the Buyer or the Buyer's subsidiaries, including without limitation, the solicitation of any of such parties to cease doing business competing with the business Fastener Business, the Buyer or the Buyer's subsidiaries. Notwithstanding the foregoing, during the Covenant Period, none of the Company Sellers or its Affiliates as such businesses exist or are in process as any of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It their subsidiaries shall not be considered prohibited from (i)(x) acquiring a violation of this Section 9.01 for the Executive to be a passive owner of not business if no more than 210% of its revenues are derived from activities that are competitive with the outstanding stock Fastener Business or (y) acquiring a business if more than 10% of any class of a corporation which is publicly traded, its revenues are derived from activities that are competitive with the Fastener Business so long as the Executive has no active participation in the business Sellers or their subsidiaries use commercially reasonable efforts to sell, discontinue or otherwise dispose of such corporation. The terms business within a reasonable period of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing time after it is acquired (but no later than ten 12 months after such acquisition) or (10ii) business days following a Justified Termination engaging in the businesses operated by Fxxxxxxxx Xxxxxxxxxxxxx Company and the APS division of its intention to enforce Fxxxxxxxx Holding as such businesses are operated as of the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")Closing Date.
(b) Subject For a period of four years after the Effective Time, neither the Parent nor any of its subsidiaries shall solicit or rehire (other than as a result of a public advertisement or general solicitation not specifically targeted at Fastener Business Employees) any Fastener Business Employees, unless the Buyer consents in writing to Section 12.09such solicitation or rehire, in provided that the event the Company provides the Executive with the Noncompetition Notice, foregoing will not (i) prevent the Company shall be required to continue to pay Parent from soliciting or rehiring any such Fastener Business Employees after the Executive termination of such employee's employment by the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery Buyer or any of the Noncompetition Noticeits subsidiaries, (ii) prohibit the Company Parent from placing public advertisements or conducting any other form of general solicitation which is not specifically targeted at Fastener Business Employees or (iii) prohibit the Parent from soliciting or rehiring any Fastener Business Employee if such employee has not been employed by the Buyer for 12 consecutive months. For a period of four years after the Effective Time, neither the Buyer nor any of its subsidiaries shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery solicit or hire any employee of the Noncompetition NoticeParent or any of its subsidiaries, unless the Parent consents in writing to such solicitation or hire, provided that the foregoing will not (i) prevent the Buyer from soliciting or hiring any such employee of the Parent after the termination of such employee's employment by the Parent or any of its subsidiaries, (ii) prohibit the Buyer from placing public advertisements or conducting any other form of general solicitation which is not specifically targeted at employees of the Parent, (iii) prohibit the Executive shall continue to receive major medical insurance coverage benefits Buyer from soliciting or hiring any employee of the Company's plans in effect at Parent if such employee has not been employed by the time of such termination of employment Parent for the Restricted Period, and 12 consecutive months or (iv) prohibit the Company shall continue to provide Buyer from hiring any Transferred Employees in accordance with Section 6.1(a).
(c) It is the housing allowance set forth in Section 4.04(e) for the lesser intention of the Restricted Period parties to this Agreement that the provisions of this Section 5.10 shall be enforced to the fullest extent permissible under the Laws and public policies applied in each jurisdiction in which enforcement is sought. If any particular provisions or portion of this Section 5.10 shall be adjudicated to be invalid or unenforceable, this Section shall be deemed amended to delete therefrom such provision or portion adjudicated to be invalid or unenforceable; such amendment to apply only with respect to the period during operation of such Section in the particular jurisdiction in which such adjudication is made.
(d) Each of the Executive remains a resident Sellers acknowledges that the Buyer would be irreparably harmed by any breach of Bermudathis Section 5.10 and that there would be no adequate remedy at Law or in damages to compensate the Buyer for any such breach. Each of the Sellers agrees that the Buyer shall be entitled to injunctive relief requiring specific performance by each of the Sellers of this Section 5.10, and such Sellers consent to the entry thereof.
Appears in 1 contract
Noncompetition. (a) The Executive acknowledges that during his employment with Ancillary to the promises contained in this -------------- Agreement, and to preserve the goodwill and Confidential Information of FCC transferred to the Parent and the Surviving Company, he hasFSB and Xxxxxxxx agree that none of them, and will continue towhether singly or in combination, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessorswill, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during for a period of three (3) years after the Employment PeriodEffective Time, directly engage in (except for Section 5.2(g)(ii) herein), or establish a subsidiary to engage in, the business of purchasing retail installment contracts for home improvement loans from contractors, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months of two years after the termination Effective Time, purchase any company or other business entity whose portfolio of home improvement loans is more than twenty percent (20%) of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after total loan portfolio of such target company. Notwithstanding any other provision of this Agreement or the termination of the Executive's employment (the time described in clauses (i) and (ii), collectivelyOperative Documents, the "Restricted 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 business of the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation provisions of this Section 9.01 5.2(g) shall terminate if the Parent or the Surviving Company ceases to conduct the Business, dissolves, or files or becomes subject to a petition in bankruptcy. FSB and Xxxxxxxx agree that that Surviving Company (or Parent or its Affiliates) may, in addition to any remedy which the Surviving Company (or Parent or its Affiliates) may have at law or in equity, apply to any court of competent jurisdiction for the Executive entry of an immediate order to be a passive owner restrain or enjoin the breach of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention this covenant and to otherwise specifically enforce the provisions of Section 9.01(a)(ii)(x) (this covenant. Further, the "Noncompetition Notice").
(b) Subject to Section 12.09existence of any potential or alleged claim or cause of action of the Members against the Surviving Company, the Parent or any other party, whether predicated on this Agreement or otherwise, except as provided in the event Escrow Agreement, will not constitute a defense to the Company provides enforcement by any party of the Executive with the Noncompetition Notice, (icovenants contained in Sections 5.2(f) the Company and 5.2(g). Nothing in this Agreement shall be required construed to continue to pay the Executive the Base Salary for the Restricted Periodlimit any obligation of confidentiality or noncompetition contained in any Employment Agreement, paid in accordance with the Company's regular pay practicesand if any Member has such an Employment Agreement, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company such two agreements shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue construed so as to provide the housing allowance set forth in Section 4.04(e) greater protection for the lesser of the Restricted Period Surviving Company, Parent, and the period during which the Executive remains a resident of Bermudaits Affiliates.
Appears in 1 contract
Noncompetition. The following noncompetition provisions shall apply:
(ai) The Executive acknowledges that shall not, at any time during his employment with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning Company or the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after month period commencing on the termination day immediately following the date (the “Termination Date”) on which his employment with the Company terminates for any reason, without the consent of the Executive's employment and (y) following an Unjustified TerminationBoard, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted Period"), he will not directly or indirectly own, manage, control, participate in, consult with, render services for or in any manner engage in any activity that the Board, in the exercise of its reasonable business competing 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 shall promptly notify the Board (or its representative) in advance in writing (which shall include a description of the activity) of his intention to engage in any activity which could reasonably be deemed to be subject to this noncompetition provision, and the Board shall respond to the Executive in writing within 10 calendar days indicating its approval or objections to the Executive’s engagement in the activity; provided, however, that if the Board (or its representative) does not respond to or request additional information from the Executive within such ten (10) day period the Board’s approval shall be deemed to be granted. If the Executive fails to notify the Board of his intended activity in advance, the Board shall retain all its rights of objections. Notwithstanding the preceding provisions of this subsection (a)(i), this subsection (a)(i) shall not be construed as preventing the Executive from investing his personal assets in any business 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 obligations of this Section 5 and, in particular, compliance with Section 5(a) of this Agreement; provided, however, that all such payments, benefits, or other entitlements under the Agreement are subject to and conditioned upon the Executive’s entering into the Release and Agreement referred to in Section 6(i) of this Agreement.
(iii) During the twenty-four (24) month period commencing on the day immediately following the Termination Date, the Executive shall not (A) influence or attempt to influence any person, firm, association, partnership, corporation, or other entity that is a contracting party with the Company to terminate any written agreement with the Company, except to the extent the Executive is acting on behalf of the 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 Company in good faith; provided, however, that nothing herein shall prohibit the Executive from generally advertising for personnel not specifically targeting any executive or other personnel of the Company.
(iv) During the Term of Employment and for the twenty-four (24) month period immediately thereafter, the Executive shall not publicly criticize or disparage the Company, any Related Company, or any director, officer, executive, or agent of the Company or its Affiliates any Related Company, except as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not may be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")required by law.
(bv) Subject to Section 12.09During the Term of Employment and for the twenty-four (24) month period immediately thereafter, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum not issue any defamatory statements about the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 1 contract
Samples: Employment Agreement (Bally Total Fitness Holding Corp)
Noncompetition. Buyer and Buyer Parent agree that effective as of the Closing Date and until the second anniversary of the Closing Date (the "ANS NONCOMPETITION PERIOD"), without the prior approval of Quest, neither Buyer nor Buyer Parent, nor any of its Affiliates will, directly or indirectly, on its own behalf or as an agent of or an investor in another Person:
(a) The Executive acknowledges that during his employment engage in the business of inventing, developing, designing, manufacturing, licensing, selling or distributing any product or device which is competitive with any of the Companyproducts invented, he hasdeveloped, and will continue todesigned or being developed or designed, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value manufactured or distributed by ANS immediately prior to the Company. In additionClosing, the Executive hereby agrees that at any time (i) or by Quest or ANS during the Employment Period, period beginning on the Closing Date and (ii) (x) following a Justified Termination and delivery ending on the date of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time Lease Agreement described in clauses (i) and (ii), collectively, the "Restricted 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 business of the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) 8.1.8 (the "Noncompetition NoticeANS COMPETITIVE BUSINESS").;
(b) Subject influence or attempt to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, influence any (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery customer or supplier of the Noncompetition Notice, ANS or (ii) any customer or supplier of Buyer or Buyer Parent during the Company three year period prior to the Closing Date to purchase or supply goods or services related to the ANS Competitive Business from or to any Person other than ANS; or
(c) solicit the employment of or hire any person who was an employee of ANS or Quest (including without limitation Retained Employees but excluding the Transferred Employees) within the 12-month period preceding such solicitation or hiring; provided, however, that nothing herein shall preclude any Person from engaging in any other business which is not an ANS Competitive Business. If any provision of this Section 6.5 should be found to be unenforceable by reason of its being too broad as to the period of time, territory, and/or scope, then, and in that event, Buyer, Buyer Parent and Quest agree that such provision shall nevertheless remain valid and fully effective, but shall be required considered to pay in a lump sum be amended so that the Executive's Target Bonus then in effect on period of time, territory, and/or scope set forth shall be changed to be the first pay date following maximum period of time, the delivery largest territory, and/or the broadest scope, as the case may be, which would be found enforceable. Any violation of the provisions of this Section 6.5 shall automatically toll and suspend the ANS Noncompetition Notice, (iii) Period for the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time duration of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermudaviolation.
Appears in 1 contract
Noncompetition. Except as set forth below or as otherwise consented to or approved in writing by Buyer, the Seller and each of the Shareholders (and Xxx X. Xxxxxxx, the sole shareholder of JPF Well Service, Inc.) agree that for a period of 60 months following the date hereof, such party will not, directly or indirectly, acting alone or as a member of a partnership or as an officer, director, employee, consultant, representative, a holder of, or investor in as much as 3% of any security of any class of any corporation or other business entity (a) The Executive acknowledges that during his employment with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted 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 in competition with the business or businesses conducted by the Seller on or before the date hereof or by Buyer (or Buyer's affiliates) on or after the date hereof, or 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 the following counties in the state of Texas: Aransas, Austin, Bastrop, Bee Xxxx, Brazoria, Brazos, Burleson, Caldwell, Xxxxxxx, Colorado, XxXxxx, Falls, Fayette, Fort Bend, Goliad, Xxxxxx, Xxxxxxxxx, Gonzales, Harris, Jackson, Karnes, Lavaca, Xxx, Xxxx, Limestone, Matagora, Madison, McLennan, Milam, Montgomery, Nueces, Refugio, Robertson, San Patricio, Travis, Victoria, Walker, Waller, Washington, Wharton, and Xxxxxxxxxx, ; (b) request any present customers or suppliers of the Company Seller or its Affiliates 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, firm or corporation any trade, technical or 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 or her employment. The Seller and each of the Shareholders agree that if either the length of time or geographical area as set forth in this Section 3.1 is deemed too restrictive in any court proceeding, the court may reduce such businesses exist or restrictions to those which it deems reasonable under the circumstances. The obligations expressed in this Section 3.1 are in process as addition to any other obligations that the Seller and the Shareholders may have under the laws of any state requiring a corporation selling its assets (or a 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 Shareholders 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 Shareholders of the date 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 Shareholders from such breach or threatened breach. If any provisions of terminationthis Section 3.1 are held to be invalid or against public policy, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It remaining provisions shall not be considered a violation of affected thereby. The Seller and the Shareholders acknowledge that the covenants set forth in this Section 9.01 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 $375,000 payable by Buyer on the date hereof by wire transfer of immediately available funds to the Seller and the Shareholders, in those amounts and to those accounts specified in Schedule 3.1 hereto and (iii) for other good and valuable consideration, the Executive to be a passive owner receipt and adequacy of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as hereby acknowledged. Notwithstanding anything to the Executive has no active participation contrary stated in the business of such corporation. The terms of this Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice3.1, (i) the Company shall be required to continue to pay conduct by the Executive the Base Salary for the Restricted Period, paid business entities listed in accordance with the Company's regular pay practices, starting with the first pay date following delivery Schedule 3.1 hereto of the Noncompetition Notice, activities set forth opposite such entities' names (the "Permitted Business") shall not be a violation by Xxx X. Xxxxxxx and the individual Shareholders of clause (a) of this Section 3.1 and (ii) the Company shall be required to pay solicitation by the business entities listed in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery Schedule 3.1 hereto of any present customer or supplier of the Noncompetition NoticeSeller or any customers of Buyer (or Buyer's Affiliates) in connection with the conduct of their Permitted Business, (iii) but only their Permitted Business and not the Executive business sold hereunder, shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period not be a violation by Xxx X. Xxxxxxx and the period during which the Executive remains a resident individual Shareholders of Bermudaclause (b) of this Section 3.1.
Appears in 1 contract
Noncompetition. Quest agrees that, effective as of the Closing Date and -------------- until the fourth anniversary of the Closing Date (the "NONCOMPETITION PERIOD"), without the prior approval of Buyer, neither Quest nor any of its Affiliates will, directly or indirectly, on its own behalf or as an agent of or an investor in another Person:
(a) The Executive acknowledges that during his employment engage in the business of inventing, developing, designing, manufacturing, licensing, selling or distributing any product or device which is competitive with any of the Companyproducts invented, he hasdeveloped, and will continue todesigned or being developed or designed, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value manufactured or distributed by Seller immediately prior to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice Closing or by the Company Buyer prior to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time Lease Agreement described in clauses (i) and (ii), collectively, the "Restricted 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 business of the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) 8.1.8 (the "Noncompetition NoticeCOMPETITIVE BUSINESS").; -------------
(b) Subject influence or attempt to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, influence any (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery customer or supplier of the Noncompetition Notice, Buyer or (ii) any customer or supplier of Seller during the Company three year period prior to the Closing Date to purchase or supply goods or services related to the Competitive Business from or to any Person other than Buyer; or
(c) solicit the employment of or hire any person who was an employee of Buyer within the 12-month period preceding such solicitation or hiring; provided, however, that nothing herein shall preclude any Person from engaging in the business conducted by ANS immediately prior to the Closing or engaging in any other business which is not a Competitive Business, or from making an investment in any entity which may engage in the Competitive Business so long as such investment interest does not exceed five percent of the outstanding voting securities of such entity and so long as such investment does not require such Person making the investment to provide services with respect to the operation and affairs of the entity in which such investment is made. If any provision of this Section 5.8 should be found to be unenforceable by ----------- reason of its being too broad as to the period of time, territory, and/or scope, then, and in that event, Buyer and Quest agree that such provision shall nevertheless remain valid and fully effective, but shall be required considered to pay in a lump sum be amended so that the Executive's Target Bonus then in effect on period of time, territory, and/or scope set forth shall be changed to be the first pay date following maximum period of time, the delivery largest territory, and/or the broadest scope, as the case may be, which would be found enforceable. Any violation of the provisions of this Section 5.8 shall automatically toll and ----------- suspend the Noncompetition Notice, (iii) Period for the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time duration of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermudaviolation.
Appears in 1 contract
Noncompetition. (a) The In consideration of the premises hereof and in further consideration of the Company's promise to disclose to Executive acknowledges that during confidential information and Proprietary Information of the Company as set forth in Section 6, and the experience Executive will gain throughout his employment with the Company, he hasand for other good and valuable consideration, the receipt and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be sufficiency of special, unique and extraordinary value to the Company. In additionwhich is hereby acknowledged, the Executive hereby agrees that at expressly agrees, confirms, represents and covenants for the benefit of the Company, as follows:
(a) During the Non-Compete Period (as defined below), the Executive shall not engage either directly or indirectly in competition with the Company, or any time of its successors or affiliates, within the Applicable Territory (idefined below), and in particular, the Executive shall not, as owner, operator, manager, employee, consultant, independent contractor, agent, salesperson, officer, director, shareholder, investor, guarantor, partner or member of a joint venture, or otherwise, directly or indirectly, engage in any manner in the Business (defined below) within the Applicable Territory. For purposes of this Agreement, the term "Applicable Territory" shall mean and include all of the United States of America, Western Europe and Canada and any other country in which the Company is engaged in Business during the Employment Periodterm hereof, and the term "Business" shall mean any enterprise whose primary business is selling information about companies, people and industries to other businesses in direct competition with Company, including but not limited to [*], as well as any new entities (ii) (x) following including entities that Executive may found), that are actively engaged in the provision of business information to users on a Justified Termination and delivery paid, subscription basis; provided that in order to enforce this non-competition restriction as against such an additional entity, the Company shall have given notice to Executive of the Noncompetition Notice inclusion of such additional entity to the restricted employer list at least thirty (30) days prior to the date on which Executive was terminated; provided that if the existence of such new company does not become generally known within the business community until after Executive's termination, the Company shall have thirty (30) days from the earlier of the date on which it became aware of the existence of such entity, or the date on which it should reasonably have become aware of the existence of such entity based on publicly available information, to inform Executive of the application of this provision to such entity; and any other business engaged in by the Company or any of its subsidiaries or affiliates during the Term other than any business incidental to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted 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 business operations of the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive subsidiaries taken together as a whole; ------------ [*] Indicates that material has been omitted and confidential treatment requested therefor. All such material has been filed separately with the Noncompetition Notice, (i) the Company shall be required Commission pursuant to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of BermudaRule 406.
Appears in 1 contract
Samples: Employment Agreement (Hoovers Inc)
Noncompetition. (a1) The Executive acknowledges that during in his employment with the CompanyCompany prior to and after the Effective Date, (i) he has, has had and will continue to, become familiar with to have access to trade secrets and other Confidential Information concerning of the Company and its Affiliates affiliates, which, if disclosed, would unfairly and their respective predecessors, and that his services will be inappropriately assist in competition against the Company or any of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and its affiliates; (ii) in the course of his employment by a competitor during the Restricted Period (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted Period"as defined below), he would inevitably use or disclose such trade secrets and Confidential Information; (iii) he has received specialized training from the Company and its affiliates; and (iv) he has generated and will continue to generate goodwill for the Company and its affiliates in the course of his employment. Therefore, in consideration of Executive’s continued employment with the Company and of the compensation and benefits provided to Executive under this Agreement, including but not limited to those set forth in Section 5(c), Executive agrees that the following restrictions on his activities during and potentially after his employment are necessary, appropriate and reasonable to protect the goodwill, Confidential Information and other legitimate interests of the Company and its affiliates from unfair and inappropriate competition. Executive agrees that during the six-month period following the completion of the Transition Period (the “Restricted Period”), Executive will not directly or indirectly ownindirectly, manage, controlindividually or in concert with others, participate in, consult with, render services for in the operations or in any manner engage in management of any business competing with the business of engaged in building residential homes in (i) any county where the Company or its Affiliates as such businesses exist or are in process conducts business as of the date Effective Date or (ii) any county adjacent to any such county.
(2) Notwithstanding the foregoing, nothing contained in this Section 5(c) shall prevent Executive from:
(i) Holding or owning (directly or indirectly) for investment, or advising other parties regarding investments in, any class of terminationequity or debt securities of a company engaged in building residential homes so long as Executive has provided prior notice to the Company’s Chief Executive Officer, within describing in reasonable detail any geographical area in which such investment and/or advisory activities. If the Company or its Affiliates engage or plan to engage believes that Executive’s investment and/or advisory activities are in such businesses. It shall not be considered a violation of this Section 9.01 for provision, the Company will have five (5) business days after such notice is provided by Executive to object and must submit the matter to an independent, third party arbitrator for resolution. If the Company fails to object within five (5) business days after notice is provided by Executive, the Company will be a passive owner of not more than 2% deemed to have waived any and all objections to Executive’s investment and/or advisory activities that are described in the notice. Notwithstanding any of the outstanding stock forgoing, Executive shall not provide any such advice to any person or entity with respect to any transaction involving the Company; or
(ii) Accepting employment with or working at the direction of any class of a corporation which is publicly tradedprivate investment fund, including but not limited to private equity and hedge funds, so long as the Executive has no active participation provided prior notice to the Company’s Chief Executive Officer describing in the business of reasonable detail any such corporationemployment. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless If the Company notifies believes that Executive’s employment with another party is in violation of this provision, the Executive in writing no later than ten Company will have five (105) business days following a Justified Termination after notice is provided by Executive to object and must submit the matter to an independent, third party arbitrator for resolution. If the Company fails to object within five (5) business days after notice is provided by Executive, the Company will be deemed to have waived any and all objections to Executive’s employment that is described in the notice.
(3) For the avoidance of its intention to enforce doubt, Executive shall at all times be bound by the provisions obligations and covenants of Section 9.01(a)(ii)(x) (the "Noncompetition Notice"5(a).
(b4) Subject Sections 5(c)(1) and 5(c)(2) will cease to Section 12.09, in be effective immediately upon the event termination of this Agreement by the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth as provided in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda1 above.
Appears in 1 contract
Noncompetition. (a) The Executive acknowledges Argexxxxxxx Xxxities (other than Argexxxxxxx Xxxurity after the Closing) agree that during his employment with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve of five (125) months after full years from the termination Closing Date, neither it nor any of its Affiliates shall engage, either directly or indirectly, as a principal or for its own account or solely or jointly with others, or as stockholders in any corporation or joint stock association (other than the ownership of less than three percent (3%) of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination equity interest of the Executive's employment (the time described any corporation or entity whose interests or shares are traded in clauses (i) and (ii), collectivelyany stock exchange or market, the "Restricted Period"), he will not directly NASDAQ or indirectly own, manage, control, participate in, consult with, render services for or in any manner engage over-the-counter market) in any business competing with that is involved in the business provision of services provided as a part of the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation US Business anywhere in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")world.
(b) Subject The Argexxxxxxx Xxxities (other than Argexxxxxxx Xxxurity after the Closing) agree that for a period of five full (5) years from the Closing Date, none of the Argexxxxxxx Xxxities (other than Argexxxxxxx Xxxurity) nor any of their respective Affiliates shall hire, solicit or induce any US Transferred Employee (except for Franx X. Xxxxxxxxxxx, Xx.) xx become an employee of any Argexxxxxxx Xxxity or any of its Affiliates. Notwithstanding the preceding sentence, Sellers shall be permitted to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, hire any US Transferred Employee (other than a US Transferred Employee whose annual compensation exceeds $75,000) who (i) the Company shall be required has terminated his or her employment with Purchaser (or an Affiliate of Purchaser), other than as a result of Sellers' breach of this Section, prior to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, being contacted by Sellers or (ii) responds to any newspaper or any other public recruitment advertisement of general circulation. In addition, notwithstanding the Company foregoing, Sellers shall be required permitted to pay hire any US Transferred Employee whose annual compensation exceeds $75,000 provided that Sellers obtain the prior written consent of Purchaser which consent shall not be unreasonably withheld.
(c) If any provision contained in a lump sum this Section shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Section, but this Section shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. It is the Executive's Target Bonus then in effect on the first pay date following the delivery intention of the Noncompetition Noticeparties that if any of the restrictions or covenants contained herein is held to cover a geographic area or to be for a length of time which is not permitted by applicable law, or in any way construed to be too broad or to any extent invalid, such provision shall not be construed to be null, void and of no effect, but to the extent such provision would be valid or enforceable under applicable law, a court of competent jurisdiction shall construe and interpret or reform this Section to provide for a covenant having the maximum enforceable geographic area, time period and other provisions (iiinot greater than those contained herein) as shall be valid and enforceable under such applicable law. The Argexxxxxxx Xxxities (other than Argexxxxxxx Xxxurity after the Executive Closing) acknowledge that Purchaser would be irreparably harmed by any breach of this Section and that there would be no adequate remedy at law or in damages to compensate Purchaser for any such breach. The Argexxxxxxx Xxxities (other than Argexxxxxxx Xxxurity after the Closing) 51 57 agree that Purchaser shall continue be entitled to receive major medical insurance coverage benefits from injunctive relief requiring specific performance by the Company's plans in effect at Argexxxxxxx Xxxities (other than Argexxxxxxx Xxxurity after the time Closing) of such termination of employment for the Restricted Periodthis Section, and the Argexxxxxxx Xxxities (ivother than Argexxxxxxx Xxxurity after the Closing) consent to the Company shall continue entry thereof.
(d) The noncompetition provisions relating to provide the housing allowance UK Business are set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of BermudaSchedule 8.06 attached hereto.
Appears in 1 contract
Noncompetition. (a) The Executive acknowledges and agrees that during his in consideration and as a condition of the Executive’s employment with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning by the Company and its Affiliates and their respective predecessorsin exchange for, and that his services will be of special, unique and extraordinary value to the Company. In additionamong other things, the benefits contained in this Agreement, including without limitation the opportunity to receive enhanced post-employment severance benefits, which the Executive hereby acknowledges and agrees is fair and reasonable consideration that at any time (i) during is independent from the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination continuation of the Executive's employment and (y) following an Unjustified Termination’s employment, for a period ending twelve (12) months after during the termination of Restricted Period the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted Period"), he Executive will not directly or indirectly ownindirectly, managewhether as owner, controlpartner, shareholder, director, manager, consultant, agent, employee, co-venturer or otherwise, engage, participate in, consult with, render services for or invest in any manner engage Competing Business anywhere in the world. For purposes hereof, the term “Competing Business” shall mean any business competing entity engaged in the discovery, development or commercialization of gene editing technology for human therapeutics. Notwithstanding the foregoing, nothing contained hereinabove or hereinbelow shall be deemed to prohibit the Executive from (i) acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding 2% of such corporation’s (or other entity’s) then outstanding shares of capital stock (or equity interest), or (ii) working for a line of business, division or unit of a larger entity that competes with the business Company as long as the Executive’s activities for such line of business, division or unit do not involve work by the Company or its Affiliates as such businesses exist or Executive on matters that are directly competitive with the Company’s business. Notwithstanding anything to the contrary in process as of the date of terminationthis Agreement, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It this Section 7(c) shall not be considered a violation 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 9.01 for 7(c). If Section 7(c) is enforced during the Executive to be a passive owner post-employment portion of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on Executive at the first pay date following the delivery rate of 50% of the Noncompetition Notice, (iii) highest annualized base salary paid to the Executive shall continue to receive major medical insurance coverage benefits from within the Company's plans in effect at two year period preceding the time last day of such termination Executive’s employment (the “Garden Leave Pay”) during the post-employment portion of employment for the Restricted Period, . During the Restricted Period Executive will promptly (and (ivimmediately upon request) notify the Company shall continue 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 event will Garden Leave Pay be duplicative of other pay and the housing allowance set forth Executive agrees that any Garden Leave Pay received pursuant to this Section 7(c) shall reduce (and shall not be in Section 4.04(eaddition to) for any other pay that the lesser Executive may be entitled to receive during the post-employment portion of the Restricted Period and Period. The Executive acknowledges having been advised by the period during which Company of the Executive remains a resident of Bermudaright to consult with counsel regarding the noncompetition restrictions contained in this Section 7(c) prior to executing this Agreement.
Appears in 1 contract
Noncompetition. (a) The Executive acknowledges that during his employment with From and after the CompanyEffective Time, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning until the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery fourth anniversary of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment Closing Date (the time described in clauses (i) and (ii), collectively, the "Restricted Covenant Period"), he each of the Sellers agree that neither it nor any of its respective subsidiaries will not anywhere in the world (i) directly or indirectly ownengage in the Fastener Business, or (ii) directly or indirectly invest in, manage, control, participate in, consult with, render services for operate, participate in or control as a partner, stockholder or consultant, or otherwise have an equity interest exceeding five percent in, any Person that competes with the Fastener Business (the "Noncompetition Agreement"). Without limiting the foregoing, during the Covenant Period, none of the Sellers or any of their respective subsidiaries shall (i) directly or indirectly serve as a consultant to any of the Sellers', the Buyer's or any of their then subsidiaries competitors that compete with the Fastener Business, or (ii) engage or participate in any manner engage in effort or act to induce any of the customers, suppliers, associates or independent contractors of the Fastener Business, the Buyer or any of the Buyer's subsidiaries to take any action or refrain from taking any action or inaction that could be reasonably be foreseen to be disadvantageous to the Fastener Business, the Buyer or the Buyer's subsidiaries, including without limitation, the solicitation of any of such parties to cease doing business competing with the business Fastener Business, the Buyer or the Buyer's subsidiaries. Notwithstanding the foregoing, during the Covenant Period, none of the Company Sellers or its Affiliates as such businesses exist or are in process as any of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It their subsidiaries shall not be considered prohibited from (i)(x) acquiring a violation of this Section 9.01 for the Executive to be a passive owner of not business if no more than 210% of its revenues are derived from activities that are competitive with the outstanding stock Fastener Business or (y) acquiring a business if more than 10% of any class of a corporation which is publicly traded, its revenues are derived from activities that are competitive with the Fastener Business so long as the Executive has no active participation in the business Sellers or their subsidiaries use commercially reasonable efforts to sell, discontinue or otherwise dispose of such corporation. The terms business within a reasonable period of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing time after it is acquired (but no later than ten 12 months after such acquisition) or (10ii) business days following a Justified Termination engaging in the businesses operated by Xxxxxxxxx Aerostructure Company and the APS division of its intention to enforce Xxxxxxxxx Holding as such businesses are operated as of the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")Closing Date.
(b) Subject For a period of four years after the Effective Time, neither the Parent nor any of its subsidiaries shall solicit or rehire (other than as a result of a public advertisement or general solicitation not specifically targeted at Fastener Business Employees) any Fastener Business Employees, unless the Buyer consents in writing to Section 12.09such solicitation or rehire, in provided that the event the Company provides the Executive with the Noncompetition Notice, foregoing will not (i) prevent the Company shall be required to continue to pay Parent from soliciting or rehiring any such Fastener Business Employees after the Executive termination of such employee's employment by the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery Buyer or any of the Noncompetition Noticeits subsidiaries, (ii) prohibit the Company Parent from placing public advertisements or conducting any other form of general solicitation which is not specifically targeted at Fastener Business Employees or (iii) prohibit the Parent from soliciting or rehiring any Fastener Business Employee if such employee has not been employed by the Buyer for 12 consecutive months. For a period of four years after the Effective Time, neither the Buyer nor any of its subsidiaries shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery solicit or hire any employee of the Noncompetition NoticeParent or any of its subsidiaries, unless the Parent consents in writing to such solicitation or hire, provided that the foregoing will not (i) prevent the Buyer from soliciting or hiring any such employee of the Parent after the termination of such employee's employment by the Parent or any of its subsidiaries, (ii) prohibit the Buyer from placing public advertisements or conducting any other form of general solicitation which is not specifically targeted at employees of the Parent, (iii) prohibit the Executive shall continue to receive major medical insurance coverage benefits Buyer from soliciting or hiring any employee of the Company's plans in effect at Parent if such employee has not been employed by the time of such termination of employment Parent for the Restricted Period, and 12 consecutive months or (iv) prohibit the Company shall continue to provide Buyer from hiring any Transferred Employees in accordance with Section 6.1(a).
(c) It is the housing allowance set forth in Section 4.04(e) for the lesser intention of the Restricted Period parties to this Agreement that the provisions of this Section 5.10 shall be enforced to the fullest extent permissible under the Laws and public policies applied in each jurisdiction in which enforcement is sought. If any particular provisions or portion of this Section 5.10 shall be adjudicated to be invalid or unenforceable, this Section shall be deemed amended to delete therefrom such provision or portion adjudicated to be invalid or unenforceable; such amendment to apply only with respect to the period during operation of such Section in the particular jurisdiction in which such adjudication is made.
(d) Each of the Executive remains a resident Sellers acknowledges that the Buyer would be irreparably harmed by any breach of Bermudathis Section 5.10 and that there would be no adequate remedy at Law or in damages to compensate the Buyer for any such breach. Each of the Sellers agrees that the Buyer shall be entitled to injunctive relief requiring specific performance by each of the Sellers of this Section 5.10, and such Sellers consent to the entry thereof.
Appears in 1 contract
Noncompetition. (a) The Executive acknowledges that during his employment with 9.1 Upon the Company, he has, terms and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value subject to the Company. In additionconditions set forth in this Section 9, the Executive hereby Odontex covenants and agrees that at any time (i) during the Employment Periodthat, and (ii) (x) following as a Justified Termination and delivery of the Noncompetition Notice by the Company material consideration running to the ExecutiveNexMed for NexMed's payments hereunder, for a period ending twelve (12) months of five years from and after the termination Closing Date, Odontex will neither permit Odontex's name to be used by nor engage in nor carry on, directly or indirectly, either for itself or as a member of a partnership or as a stockholder, investor, agent, associate or consultant of any person, partnership or corporation (other than NexMed) any business in competition with the business relating to the Topical Technology, the Patents and/or the Technical Information as carried on by Odontex on the Closing Date, but only for as long as such like business is carried on by (i) NexMed or any subsidiary or affiliate of NexMed, or (ii) any person, corporation, partnership, trust or other organization or entity deriving title from NexMed to the business relating to the Topical Technology, the Patents and the Technical Information being carried on by Odontex on the Closing Date, in any county in which NexMed conducts business, or in any other county in any state of the Executive's employment United States, or in any country or political subdivision of the world. The parties intend that the covenants contained in this Section 9.1 shall be deemed to be a series of separate covenants, one for each county in each state of the United States and (y) following an Unjustified Terminationfor each country and political subdivision of the world and, except for geographic coverage, each such separate covenant shall be identical in terms to the covenant contained in this Section 9.1. Odontex further covenants and agrees that for a period ending twelve of five (125) months years from and after the termination Closing Date, Odontex will not recruit, hire, assist others in recruiting or hiring, discuss employment with, or refer to others concerning employment, any person who is, or within the twelve-month period immediately prior to the Closing Date was, an employee of Odontex, NexMed or a subsidiary or affiliate of either.
9.2 The term of the Executive's employment covenants contained in Section 9.1 hereof shall be tolled for the period commencing on the date any successful action is filed for injunctive relief or damages arising out of a breach by Odontex of Section 9.1 hereof and ending upon final adjudication (including appeals) of such action.
9.3 If, in any judicial proceeding, the court shall refuse to enforce all of the separate covenants contained in Section 9.1 hereof because the time described limit is too long, it is expressly understood and agreed between the parties hereto that for purposes of such proceeding such time limitation shall be deemed reduced to the extent necessary to permit enforcement of such covenants. If, in clauses (i) and (ii), collectivelyany judicial proceeding, the "Restricted Period")court shall refuse to enforce all of the separate covenants contained in Section 9.1 hereof because it is more extensive (whether as to geographical area, he will not directly scope of business or indirectly own, manage, control, participate in, consult with, render services for or in any manner engage in any business competing with otherwise) than necessary to protect the business and goodwill of NexMed, it is expressly understood and agreed between the Company parties hereto that for purposes of such proceeding, the geographical area, scope of business or its Affiliates as other aspect shall be deemed reduced to the extent necessary to permit enforcement of such businesses exist or are in process as covenants.
9.4 Odontex acknowledges that a breach of the date of terminationSection 9.1 hereof would cause irreparable damage to NexMed, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation and in the business event of such corporation. The terms Odontex's actual or threatened breach of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.099.1 hereof, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company NexMed shall be required entitled to continue to pay a temporary restraining order and an injunction restraining Odontex from breaching such covenants without the Executive the Base Salary for the Restricted Periodnecessity of posting bond or proving irreparable harm, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company such being conclusively admitted by Odontex. Nothing shall be required to pay in a lump sum construed as prohibiting NexMed from pursuing any other available remedies for such breach or threatened breach, including the Executive's Target Bonus then in effect on recovery of damages from Odontex. Odontex acknowledges that the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance restrictions set forth in Section 4.04(e) for this Agreement are reasonable in scope and duration, given the lesser nature of the Restricted Period and the period during which the Executive remains a resident business of BermudaNexMed.
Appears in 1 contract
Noncompetition. In the event that: (a) The Executive acknowledges that a Change in Control and Change in Duties or Salary occur during the term of this Agreement, but before the Officer reaches the age of 65, or (b) the Officer's employment is terminated except for cause at any time within twenty-four (24) months following a Change in Control, but before the Officer reaches the age of 65, then the Officer shall not for a period of eighteen (18) months following his resignation or termination of employment (i) solicit, attempt to solicit, divert or take away the banking customers of the Bank, or encourage or solicit the Bank's customers to discontinue their banking relationships with Bank and its affiliates, or attempt or seek to cause any of the Bank's customers to refrain from doing business with the Bank and its affiliates, or (ii) request, induce or solicit any employee of PALFED/Palmetto Federal Salary Continuation Agmt (May 1997) page 5 Company and its subsidiaries to terminate his or her employment with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates subsidiaries. Nothing in this Section shall be construed as preventing the Officer from accepting employment with a competitor of the Company and the Bank, provided that the Officer does not breach the covenants set forth in this Section 6 not to solicit customers or employees of the Company and the Bank to terminate their business or employment relationships with the Company or the Bank. In consideration of the foregoing covenants and agreements not to solicit the employees and customers of the Company following the Officer's resignation or termination of employment, if the events specified in subsections 6(a) or 6(b) occur, the Officer shall be entitled to receive an aggregate payment equal to one (1) times the Officer's average annual taxable compensation from the Company and the Bank (and their respective predecessors, and that his services will be of special, unique and extraordinary value affiliates determined pursuant to the Company. In addition, the Executive hereby agrees that at any time (iSection 280G(d)(5) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by Code) for the Company to most recent five taxable years ending before the Executive, for a period ending twelve (12) months after Change in Duties or Salary or the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the ExecutiveOfficer's employment (the time described in clauses (i) and (ii), collectively, the "Restricted 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 business of the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains Employee was employed by the Bank if the Officer has been employed by the Bank for less than five (5) years) (such amount is hereinafter referred to as the "Noncompetition Payment"). The Noncompetition Payment shall be payable in addition to and in the same time and manner as the Salary Continuation Payment, and shall be due and payable whether or not the Officer's employment is terminated or the officers resigns following a resident of BermudaChange in Control and a Change in Duties or Salary.
Appears in 1 contract
Samples: Salary Continuation and Noncompetition Agreement (Palfed Inc)
Noncompetition. (a) The Executive acknowledges From and after the Effective Time, until the fourth anniversary of the Closing Date (the “Covenant Period”), each of the Sellers agree that during his employment with neither it nor any of its respective subsidiaries will anywhere in the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time world (i) during directly or indirectly engage in the Employment PeriodFastener Business, and or (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted Period"), he will not directly or indirectly owninvest in, manage, control, participate in, consult with, render services for operate, participate in or control as a partner, stockholder or consultant, or otherwise have an equity interest exceeding five percent in, any Person that competes with the Fastener Business (the “Noncompetition Agreement”). Without limiting the foregoing, during the Covenant Period, none of the Sellers or any of their respective subsidiaries shall (i) directly or indirectly serve as a consultant to any of the Sellers’, the Buyer’s or any of their then subsidiaries competitors that compete with the Fastener Business, or (ii) engage or participate in any manner engage in effort or act to induce any of the customers, suppliers, associates or independent contractors of the Fastener Business, the Buyer or any of the Buyer’s Table of Contents subsidiaries to take any action or refrain from taking any action or inaction that could be reasonably be foreseen to be disadvantageous to the Fastener Business, the Buyer or the Buyer’s subsidiaries, including without limitation, the solicitation of any of such parties to cease doing business competing with the business Fastener Business, the Buyer or the Buyer’s subsidiaries. Notwithstanding the foregoing, during the Covenant Period, none of the Company Sellers or its Affiliates as such businesses exist or are in process as any of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It their subsidiaries shall not be considered prohibited from (i)(x) acquiring a violation of this Section 9.01 for the Executive to be a passive owner of not business if no more than 210% of its revenues are derived from activities that are competitive with the outstanding stock Fastener Business or (y) acquiring a business if more than 10% of any class of a corporation which is publicly traded, its revenues are derived from activities that are competitive with the Fastener Business so long as the Executive has no active participation in the business Sellers or their subsidiaries use commercially reasonable efforts to sell, discontinue or otherwise dispose of such corporation. The terms business within a reasonable period of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing time after it is acquired (but no later than ten 12 months after such acquisition) or (10ii) business days following a Justified Termination engaging in the businesses operated by Xxxxxxxxx Xxxxxxxxxxxxx Company and the APS division of its intention to enforce Xxxxxxxxx Holding as such businesses are operated as of the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")Closing Date.
(b) Subject For a period of four years after the Effective Time, neither the Parent nor any of its subsidiaries shall solicit or rehire (other than as a result of a public advertisement or general solicitation not specifically targeted at Fastener Business Employees) any Fastener Business Employees, unless the Buyer consents in writing to Section 12.09such solicitation or rehire, in provided that the event the Company provides the Executive with the Noncompetition Notice, foregoing will not (i) prevent the Company shall be required to continue to pay Parent from soliciting or rehiring any such Fastener Business Employees after the Executive termination of such employee’s employment by the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery Buyer or any of the Noncompetition Noticeits subsidiaries, (ii) prohibit the Company Parent from placing public advertisements or conducting any other form of general solicitation which is not specifically targeted at Fastener Business Employees or (iii) prohibit the Parent from soliciting or rehiring any Fastener Business Employee if such employee has not been employed by the Buyer for 12 consecutive months. For a period of four years after the Effective Time, neither the Buyer nor any of its subsidiaries shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery solicit or hire any employee of the Noncompetition NoticeParent or any of its subsidiaries, unless the Parent consents in writing to such solicitation or hire, provided that the foregoing will not (i) prevent the Buyer from soliciting or hiring any such employee of the Parent after the termination of such employee’s employment by the Parent or any of its subsidiaries, (ii) prohibit the Buyer from placing public advertisements or conducting any other form of general solicitation which is not specifically targeted at employees of the Parent, (iii) prohibit the Executive shall continue to receive major medical insurance coverage benefits Buyer from soliciting or hiring any employee of the Company's plans in effect at Parent if such employee has not been employed by the time of such termination of employment Parent for the Restricted Period, and 12 consecutive months or (iv) prohibit the Company shall continue to provide Buyer from hiring any Transferred Employees in accordance with Section 6.1(a).
(c) It is the housing allowance set forth in Section 4.04(e) for the lesser intention of the Restricted Period parties to this Agreement that the provisions of this Section 5.10 shall be enforced to the fullest extent permissible under the Laws and public policies applied in each jurisdiction in which enforcement is sought. If any particular provisions or portion of this Section 5.10 shall be adjudicated to be invalid or unenforceable, this Section shall be deemed amended to delete therefrom such provision or portion adjudicated to be invalid or unenforceable; such amendment to apply only with respect to the period during operation of such Section in the particular jurisdiction in which the Executive remains a resident of Bermudasuch adjudication is made.
Appears in 1 contract
Samples: Acquisition Agreement (Alcoa Inc)
Noncompetition. (a) The Executive acknowledges that during his employment with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) Subject to Section 7a (iv) below, during the Employment Period, and (ii) (x) following a Justified Termination and delivery also during the period commencing on the date of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment Employment Period and (y) following an Unjustified Termination, for a period ending twelve (12) months after on the termination first anniversary of the Executive's employment (date of termination, or until February 6, 2010, whichever expires last, Executive shall not anywhere in the time described in clauses (i) and (ii)United States, collectively, the "Restricted Period"), he will not directly or indirectly indirectly, own, manage, control, participate in, consult with, render services for for, or in any manner engage in any business (i) competing with a brand of the Company, Employer, Medtech, Denorex, Spic and Span, Comet, Prestige, any business acquired by such Persons, or any Subsidiaries of such Persons, representing 10% or more of the consolidated revenues or EBITDA of the Company or and its Affiliates as such businesses exist or are in process as Subsidiaries for the trailing 12 months ending on the last day of the last completed calendar month immediately preceding the date of terminationtermination of the Employment Period, within any geographical area or (ii) in which the Company Company, Employer, Medtech, Denorex, any business acquired by such Persons, or its Affiliates engage any Subsidiaries of such Persons has conducted discussions or plan has requested and received information relating to engage in the acquisition of such businessesbusiness by such Person (x) within one year prior to the Separation and (y) during the Severance Period, if any (collectively, a “Competitor”). It Nothing herein shall not be considered a violation of this Section 9.01 for the prohibit Executive to be from being a passive owner of not more than 2% of the outstanding stock of any class of such a corporation which that is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(bii) Subject to Section 12.097a (iv) below, during the Employment Period, and also during the period commencing on the date of termination of the Employment Period and ending on the first anniversary of the date of termination, or until February 6, 2010, whichever expires last, Executive shall not undertake or accept any management position, or any position in which he is vested with management responsibilities (e.g., an officer, a director, a consultant to senior executives, etc.), with any Competitor; nor shall he offer his services, in any way, to any business entity that seeks to use Executive’s services to the benefit of any Competitor. Subject to the provisions set forth in Section 7(a)(i) and Section 7(a)(ii) above, Executive may pursue such personal and professional opportunities as he may choose during the term of this Agreement and thereafter, which opportunities may include, but shall not be limited to, (i) serving on boards of directors of business entities and non-profits other than those of the Company, Employer, and their respective Subsidiairies and Affiliates; (ii) consulting with various companies other than the Company, Employer, and their respective Subsidiaries and Affiliates; organizations other than Company, Employer, and their respective Subsidiaries and Affiliates; or other similar entities; and (iii) offering his services to entities such as investment banks, private equity firms, and the like; provided, however, that none of the activities that Executive may undertake pursuant to this Section 7(a)(iii) shall impair his obligations to the Company, Employer, and their respective Subsidiaries and Affiliates or otherwise impede him in the performance of his duties toward the same; and further provided that none of the opportunities that Executive undertakes pursuant to this Section 7(a)(iii) shall cause him to consult with, work for, own, manage, control, participate in, render services for, or in any manner engage in a business that would cause him to violate his obligations under Section 7(a)(i) above.
(iv) Notwithstanding the restrictions set forth in this Agreement, in the event of a Sale of the Company provides on or before February 5, 2009, all of the Executive with provisions of this Section 7(a) shall remain in force for one year following the Noncompetition Notice, (i) consummation of the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with Sale of the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 1 contract
Samples: Senior Management Agreement (Prestige Brands Holdings, Inc.)
Noncompetition. The Company considers and the Executive acknowledges that the following restraints, on which the Executive has had the opportunity to take independent legal advice, are necessary for the reasonable protection by the Company of its business or the business of the Affiliates, the clients thereof or their respective affairs.
(a) The Executive acknowledges that shall not while he is employed by the Company or during the 6 month period after the Date of Termination, except in the event of a wrongful termination by the Company, be employed by, serve as a consultant to, or otherwise in any capacity assist or directly or indirectly provide services to a Competitor (defined below) if the trade secrets, confidential information, or proprietary information (including, without limitation, confidential or proprietary methods) of the Company and the Affiliates to which the Executive had access during his employment with hereunder could reasonably be expected to benefit the Competitor if the Competitor were to obtain access to such secrets or information.
(b) The Executive shall not while he is employed by the Company or during the 12 month period after the Date of Termination, except in the event of a wrongful termination by the Company, he hassolicit or attempt to solicit any person, and will continue tocompany, become familiar with trade secrets and other Confidential Information concerning firm or business who during the 12-month period prior to such solicitation or attempt by the Executive was a customer or supplier of the Company or Affiliate and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, with whom the Executive hereby agrees had business dealings during such 12 month period, provided that at the restriction in this paragraph (b) shall not apply to any time activity on behalf of a business that is not a Competitor.
(ic) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice The Executive shall not while he is employed by the Company or during the 12 month period after the date of the termination of his employment, except in the event of a wrongful termination by the Company, solicit, entice, persuade or induce any individual who is employed by the Company or the Affiliates (or was so employed within 90 days prior to the Executive, for a 's action) and with whom the Executive had business dealings during the 12 month period ending twelve (12) months after the termination of prior to the Executive's action to terminate or refrain from renewing or extending such employment or to become employed by or enter into contractual relations with any other individual or entity other than the Company or the Affiliates, and the Executive shall not approach any such employee for any such purpose or authorize or knowingly cooperate with the taking of any such actions by any other individual or entity.
(yd) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted Period"), he will The Executive shall not directly or indirectly own, manage, control, participate in, consult with, render services for or own an equity interest in any manner engage in any business competing with the business Competitor (other than ownership of the Company 1% or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% less of the outstanding stock of any class of corporation listed on a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice"national stock exchange).
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 1 contract
Noncompetition. (a) The Executive acknowledges a. Employee agrees that during his employment with the Company, he has, term of this Agreement and will continue to, become familiar with trade secrets and other Confidential Information concerning for one (1) year after the Employment Termination Date (except that in the event of termination or nonrenewal by the Company during the period commencing six (6) months preceding the date of a Change in Control and its Affiliates and their respective predecessorsending two (2) years following the date of a Change in Control, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time neither clause (i) of this Section 10(a) nor Section 10(b) shall apply to Employee), Employee shall not (i) directly or indirectly solicit any person (natural or otherwise) to develop, construct, purchase or sell any multifamily or retail real estate or a mortgage loan financing such type of real estate if the person being solicited is or had been a developer or contractor with, or purchaser from or seller to, the Company of such type of property during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months prior to the Employment Termination Date or (ii) recruit or otherwise solicit or induce any person who is at the time an employee or consultant of the Company to terminate his employment with, or otherwise cease his relationship with, the Company, or hire any such employee or consultant who has left the employ of the Company within one (1) 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 Company whose employment has been terminated by the Company and, provided further, that if Employee has terminated his employment of his own volition, this restriction upon recruiting employees or consultants shall run for two (2) years after the termination Employment Termination Date. For example, if the term hereunder is not renewed pursuant to Section 22 hereof, then for a one-year period following the date of such nonrenewal, Employee shall be subject to this Section 10(a) and Section 10(b) hereof; provided, however, that if a Change in Control occurs during the six-month period following the date of such nonrenewal (and such nonrenewal has been at the election of the Executive's employment and (y) following an Unjustified TerminationCompany), for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses Employee shall not be subject to clause (i) of this Section 10(a) or Section 10(b) hereof from and after the date of such Change in Control. By way of additional example, if a Change in Control occurs and an Employment Termination Date occurs (ii)other than an Employment Termination Date occurring as a result of Employee's election not to renew this Agreement) during the two-year period commencing on the date of the Change in Control, collectivelyEmployee shall not be subject to clause (i) of this Section 10(a) or Section 10(b) hereof from and 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 hereof, the "Restricted Period")if Employee shall become an employee, he will not directly officer, director, shareholder, principal, agent, partner or indirectly own, manage, control, participate in, consult with, render services for consultant or otherwise be engaged in any manner engage or have a financial or other interest in any business competing which competes with the Company, or its subsidiaries or affiliates or providers under contract of development, construction, property management or administrative services, equipment or facilities (which activity by the Employee is not prohibited by this Agreement), any base salary received from such activities shall be set off against any severance pay which he is entitled to receive from the Company. Notwithstanding the foregoing, Employee may make personal investments in the equity securities of any publicly traded company provided that any such investment does not exceed one percent (1%) of the market capitalization of the class of securities of the company in which his investment is made.
c. The restrictions against activities set forth in Section 10(a) and (b) above are considered by the parties to be reasonable for the purposes of protecting the business of the Company or its Affiliates as such businesses exist or are in process as Company. If any restriction is found by a court of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive competent jurisdiction to be unenforceable because it extends for too long a passive owner period of not more than 2% time, over too broad a range of the outstanding stock of any class of activities or in too large a corporation which is publicly tradedgeographic area, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) that restriction shall be interpreted to extend only over the maximum period of no force time, range of activities or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention geographic area as to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")which it may be enforceable.
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 1 contract
Noncompetition. (a) The Executive acknowledges that during his During the period of my employment with by the Company, he hasI shall not, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted Period"), he will not directly or indirectly ownindirectly, managealone or as a consultant, controlpartner, participate inofficer, consult withdirector, render services for employee, joint venturer, lender or in stockholder of any manner entity, engage in any business competing or activity that is in competition with the products or services being created, developed, manufactured, marketed, distributed or sold by the Company in (a) the State of Connecticut, (b) the States of New York, Massachusetts and Connecticut, (c) the continental United States of America, (d) the United States and Europe or (e) worldwide. Notwithstanding the foregoing, except for the companies listed on Addendum I, as to which I agree that I may not have any direct investments, nothing contained in this Section 2 shall be deemed to prohibit me from acquiring or holding, solely for investment, publicly traded securities of any corporation, some or all of the activities of which are competitive with the business of the Company or its Affiliates so long as such businesses exist securities do not, in the aggregate, constitute more than one percent (1%) of any class or are series of outstanding securities of such corporation. If I resign from the Company for any reason other than Good Reason (as such term is defined in process as my Severance Agreement with the Company), for one year following the termination of my employment, I will refrain from management of or participation in research programs at or on behalf of any entity in areas related to antimicrobials or in areas related to specific chemical approaches or series the date of termination, within any geographical area Company is engaged in during my employment or in which the Company or its Affiliates is planning to engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporationpast engaged. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless If the Company notifies the Executive terminates me, or if I resign for Good Reason (as such term is defined in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance my Severance Agreement with the Company's regular pay practices), starting with the first pay date one year period stated in the previous sentence shall be reduced to a period of 6 months following delivery the termination of my employment period. Regardless of the Noncompetition Noticereason for my termination or resignation in the case of areas of business unrelated to antimicrobials, (ii) for one year following the termination of my employment, regardless of the reasons for my termination, I will refrain from management of or participating in any such non-antimicrobial programs which are under prosecution at the Company shall be required to pay or in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) which the Company shall continue is planning to provide engage or has in the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermudapast engaged in.
Appears in 1 contract
Samples: Employee Noncompetition, Nondisclosure and Developments Agreement (Rib-X Pharmaceuticals, Inc.)
Noncompetition. (a) The Executive acknowledges that during his employment with the CompanyPrior to [OMITTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST], he hasnone of Sellers nor any of their Affiliates shall, directly or indirectly, develop or manufacture, and will continue toprior to [OMITTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST], become familiar none of Sellers nor any of their Affiliates shall, directly or indirectly, sell, market, promote, distribute or otherwise commercialize within the United States, for themselves, their Affiliates or any third party (other than selling to third party marketers or distributors after [OMITTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST] as a contract manufacturer for such third parties) any finished dosage pharmaceutical product, available by prescription only, in capsule form, containing [OMITTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST]; provided, that in the event of the acquisition of any such product by either of Sellers or any of their Affiliates as a consequence of the acquisition of any unrelated firm, person, entity or business (whether by reason of a merger, consolidation, purchase of all or substantially all of a third party’s assets or discrete business, purchase of securities or any other transaction with trade secrets a substantially similar effect), and other Confidential Information concerning if sales of any such acquired product within the Company and its Affiliates United States constitute more than [OMITTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST] of the annual revenues of the acquired firm, person, entity or business, Sellers and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time Affiliates (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted Period"), he will not directly or indirectly own, manage, control, participate in, consult with, render services for or as appropriate in any manner engage in circumstance) will divest any business such competing with the business product to an independent third party within [OMITTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST] of the Company or its Affiliates as such businesses exist or are in process as of the date of terminationacquisition or, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly tradedfailing that, so long as the Executive has no will cease active participation in the business marketing, sale and/or distribution of such corporation. The terms product at the end of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")such [OMITTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST] period.
(b) Subject The noncompetition covenant set forth in this Section 5.8 will not be applicable to any bona fide third party that acquires all or substantially all of the business of Sellers and/or their Affiliates to which this Agreement relates.
(c) Sellers understand and agree that remedies at law may be inadequate to protect Buyer against any breach or threatened breach by Sellers (or any other person acting in concert with Sellers or on their behalf) of the provisions of this Section 12.095.8. Accordingly, Buyer, without the necessity of posting a bond or other financial assurance, shall be entitled to seek injunctive or other appropriate equitable relief from a court of competent jurisdiction to redress any breach of this Section 5.8, in addition to any monetary damages or other relief to which Buyer may be entitled.
(d) The parties recognize that the event laws and public policies of various jurisdictions may differ as to the Company provides validity and enforceability of covenants similar to the Executive with noncompetition covenant set forth in this Section 5.8. It is the Noncompetition Noticeintention of the parties that the provisions of this Section 5.8 be enforced to the fullest extent permissible under the laws and policies of each jurisdiction in which enforcement may be sought and that the unenforceability (or the modification to conform to such laws or policies) of any provisions of this Section 5.8 shall not render unenforceable or otherwise impair the remainder of the provisions of this Section 5.8. Accordingly, if any provision of this Section 5.8 is determined to be invalid or unenforceable by a court of competent jurisdiction, then (i) the Company such invalidity or unenforceability shall be required deemed to continue apply only with respect to pay the Executive operation of such provision in the Base Salary for particular jurisdiction of such court and not with respect to any other provision or jurisdiction and, (ii) with respect to invalidity or unenforceability in the Restricted Periodparticular jurisdiction of such court, paid such court shall have the power either to (A) reduce the scope, duration or coverage of such provision or (B) replace such provision with a provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision. Should such court fail or refuse to exercise its power to amend the covenants set forth in this Section 5.8, the parties shall proceed in accordance with the Company's regular pay practices, starting with the first pay date following delivery requirements of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery last sentence of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda8.4.
Appears in 1 contract
Samples: Product Transfer Agreement (Hi Tech Pharmacal Co Inc)
Noncompetition. (a) The Executive acknowledges Seller agrees that during his employment with for a period of two years after the CompanyClosing Date, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and neither it nor any of its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time shall:
(i) during engage, either directly or indirectly, as a principal or for its own account or solely or jointly with others, or as stockholders in any corporation or joint stock association, in any business that competes with the Employment Period, and Business as it exists on the Closing Date; provided that nothing herein shall prohibit (x) the acquisition by Seller or any of its Affiliates of a diversified company having not more than 10% of its sales (based on its latest published annual audited financial statements) attributable to activities that compete with the Business or (y) owning less than five percent of the outstanding publicly-traded securities of any Person so long as such ownership is a passive investment; or
(ii) (x) following employ or solicit, or receive or accept the performance of services by, any Business Employee having a Justified Termination and delivery title of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted Period"), he will not directly Director or indirectly own, manage, control, participate in, consult with, render services for or in any manner engage in any business competing with the business of the Company or its Affiliates as such businesses exist or are in process above as of the date hereof or as of the Closing Date; provided that the foregoing restriction shall not apply to (A) generalized searches for employees through media advertisements of general circulation, employment search firms, online job boards, open job fairs or other similar means which are not specifically targeted at such employees or hiring any person that responds to the same; (B) any such employee whose employment is terminated by Buyer or any of its Affiliates (including the Purchased Companies) from and after the date of such termination, within ; or (C) any geographical area in which the Company such employee who voluntarily ceases employment with Buyer or its Affiliates engage or plan (including the Purchased Companies) from and after the earlier to engage in such businesses. It shall not be considered a violation occur of this Section 9.01 for (I) the Executive to be a passive owner of not more than 2% of date that is two years following the outstanding stock of any class of a corporation which Closing Date and (II) the date that is publicly traded, so long as six months following the Executive has no active participation in the business cessation of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force employee’s employment with Buyer or effect unless its Affiliates (including the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice"Purchased Companies).
(b) Subject to If any provision contained in this Section 12.09shall for any reason be held invalid, illegal or unenforceable in the event the Company provides the Executive with the Noncompetition Noticeany respect, (i) the Company such invalidity, illegality or unenforceability shall not affect any other provisions of this Section, but this Section shall be required to continue to pay construed as if such invalid, illegal or unenforceable provision had never been contained herein. It is the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery intention of the Noncompetition Noticeparties that if any of the restrictions or covenants contained herein is held to cover a geographic area or to be for a length of time which is not permitted by Applicable Law, or in any way construed to be too broad or to any extent invalid, such provision shall not be construed to be null, void and of no effect, but to the extent such provision would be valid or enforceable under Applicable Law, a court of competent jurisdiction shall construe and interpret or reform this Section to provide for a covenant having the maximum enforceable geographic area, time period and other provisions (iinot greater than those contained herein) the Company as shall be required valid and enforceable under such Applicable Law. Seller acknowledges that Buyer would be irreparably harmed by any breach of this Section and that there would be no adequate remedy at law or in damages to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery compensate Buyer for any such breach. Seller agrees that Buyer shall be entitled to injunctive relief requiring specific performance by Seller of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Periodthis Section, and (iv) Seller consents to the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermudaentry thereof.
Appears in 1 contract
Noncompetition. (a) The Executive acknowledges that during his Until two years after termination of Employee's employment with the Companyhereunder, he has, and Employee will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time not (i) during 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 Employment Period, acquisition and (ii) (x) following a Justified Termination and delivery consolidation of the Noncompetition Notice medical practices which were either conducted by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (at the time described in clauses of Employee's termination or Proposed to be Conducted (ias defined herein) and (ii), collectively, the "Restricted 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 business of by the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination (the Designated Industry), (ii) divert to any competitor of employment for the Restricted Period, and (iv) the 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, (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 or (iii) notwithstanding the above, investing in or serving as an officer or employee of an entity that owns and operates outpatient surgery centers and that is not engaged in the business of physician practice management, provided that if during the term of this Agreement Employee is serving as an officer, director or employee of another entity, the amount of time spent by Employee in connection with such service taken together with the amount of consulting time spent by Employee in accordance with Section 11 shall not exceed 10% of his professional time or two (2) days per month. 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 provide be bound by the housing allowance set forth in provisions of this Section 4.04(e) for 10 until their expiration and will not be entitled to any compensation from the lesser Company with respect thereto. If at any time the provisions of this Section 10 are determined to be invalid or unenforceable, by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 10 will be considered divisible and will become and be immediately amended to only such area, duration and scope of activity as will be determined to be reasonable and enforceable by the Restricted Period court or other body having jurisdiction over the matter; and the period during which the Executive remains a resident of BermudaEmployee agrees that this Section 10 as so amended will be valid and binding as though any invalid or unenforceable provision had not been included herein.
Appears in 1 contract
Samples: Employment Agreement (Physicians Resource Group Inc)
Noncompetition. (a) The Executive acknowledges that during his employment with the CompanySubject to Section 12.1(c), he has, Seller covenants and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve of two (122) months after years following the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment Closing Date (the time described in clauses (i“Covenant Term”) it shall not, and (ii), collectively, the "Restricted Period"), he will shall cause its Subsidiaries 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 business of the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation the manufacture or sale of this Section 9.01 for products that are within the Executive to be a passive owner of not more than 2% scope of the outstanding stock of any class of Business (a corporation which is publicly traded“Seller Competitive Business”) in direct or indirect competition with Purchaser, so long whether as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force employer, proprietor, partner, stockholder, consultant, agent, lender or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")guarantor or otherwise.
(b) Purchaser covenants and agrees that for the Covenant Term it shall not, and shall cause its Subsidiaries not to, engage in the manufacture or sale of paperboard or paperboard packaging products using the Xxxxx acquired under this Agreement in direct or indirect competition with Seller’s retained paperboard or paperboard packaging businesses as of a time immediately after the Closing (each such retained business, a “Purchaser Competitive Business”), whether as employer, proprietor, partner, stockholder, consultant, agent, lender or guarantor or otherwise; provided that nothing in this Section 12.1(b) shall restrict Purchaser or its Subsidiaries from continuing to manufacture the paperboard and paperboard packaging products at the Wickliffe Mill as currently manufactured, or, with respect to the Enhanced Surface Cover Gradeline - C1S and C2S, as currently under development for manufacturing, and sell such products so manufactured.
(c) Notwithstanding anything to the contrary contained in Section 12.1(a):
(i) in the event that during the Covenant Term Seller completes a business combination transaction with a Person that is engaged in any Seller Competitive Business, which transaction results in the holders of the voting securities of Seller outstanding immediately prior to the consummation of such transaction owning less than 50% of the voting power of the voting securities of Seller or the surviving entity in the transaction or any parent thereof (any such entity, an “Acquiror”) outstanding immediately after the consummation of such transaction, such Acquiror or any of its Subsidiaries or Affiliates may engage in any activity prohibited or restricted by Section 12.1(a);
(ii) Seller may directly or indirectly hold interests in or securities of any Person to the extent that such investment does not directly or indirectly confer on Seller more than 15% of the voting power of such Person; and Seller does not have any representation on the board of directors or other managing body of such Person;
(iii) Seller may maintain and continue, and Section 12.1(a) shall not be understood to restrict in any manner whatsoever, the operations of Seller and its Subsidiaries that are not being transferred to Purchaser hereunder in accordance with current and past practices and the normal expansion thereof, including the production, sale and distribution of all products and grades currently produced by Seller and its Subsidiaries that are not included within the Business;
(iv) Seller may acquire interests in or securities of any Person as an investment by Seller’s pension funds or funds of any other benefit plan of Seller whether or not such Person is engaged in any Seller Competitive Business;
(v) Seller may acquire interests in or securities of any Person that derived 25% or less of its total annual revenues in its most recent fiscal year from activities that constitute Seller Competitive Businesses;
(vi) Subject to Section 12.0912.1(e) hereof, Seller may acquire a business, assets and/or more than 50% of the outstanding capital stock or other equity interests in any Person (or any lesser percentage if, pursuant to contractual or other arrangements, Seller has the right to cause such Person to take the actions specified in the following proviso) that derived in excess of 25% of its total annual revenues in its most recent fiscal year from activities that constitute Seller Competitive Businesses; provided, however, that Seller shall use commercially reasonable efforts to divest that portion of such Person that engages in activities constituting Seller Competitive Businesses on commercially reasonable terms as soon as reasonably practicable and in any event within twelve months following the Company provides acquisition of such ownership or interest;
(vii) Seller may acquire or use any product for internal uses or to conduct Seller’s or its Subsidiaries’ other businesses that consume, use, contain, depend upon or otherwise incorporate any such product; and
(viii) Seller may perform any act or conduct any business contemplated hereby or the Executive with the Noncompetition Notice, Transition Agreements.
(id) the Company The parties hereto acknowledge and agree that nothing herein shall be deemed to require Seller to give notice to or obtain the consent of Purchaser in order to engage in any activity or transaction of the types described in Section 12.1(c) or otherwise.
(e) If at any time and from time to time during the Covenant Term, Seller engages in any acquisition or series of related acquisitions covered under Section 12.1(c)(vi) hereof (a “Permitted Competitive Acquisition”), Seller shall notify Purchaser of such Permitted Competitive Acquisition as promptly as practicable following the consummation of such acquisition. Not later than the ninetieth (90th) calendar day after the consummation of the Permitted Competitive Acquisition (or an earlier date, as determined by Seller), Seller shall provide Purchaser (or its designee) and its counsel, accountants, debt financing sources and other representatives reasonable access to the books, records, employees, officers, accountants, attorneys, representatives and properties of the Seller Competitive Business, for a period of sixty (60) calendar days from the date such access is first provided (such period, the “Due Diligence Period”), subject to any then existing confidentiality restrictions and limitations on access to competitively sensitive information required for compliance with antitrust Law and to continue to pay Purchaser’s entry into a confidentiality agreement on substantially the Executive same terms as those contained in the Base Salary for Confidentiality Agreement. Within sixty (60) days of the Restricted commencement of the Due Diligence Period, paid Purchaser (or its designee) may, but is not obligated to, make a final comprehensive written offer (the “Final Offer”) to Seller to acquire the Seller Competitive Business. In the event that Seller determines that Final Offer is acceptable, subject to completion of definitive documentation, the Purchaser (or its designee) and Seller shall engage in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date good faith negotiations following the delivery of such Final Offer to reach agreement on the Noncompetition Noticedefinitive terms of such transaction. In the event that (a) Seller rejects such Final Offer in writing, (iiib) Purchaser (or its designee) fails to make any such Final Offer within such sixty (60) day period described above or notifies Seller that Purchaser (or its designee) does not intend to make any such Final Offer, or (c) Purchaser (or its designee) and Seller are unable to reach agreement on the definitive terms of such transaction within thirty (30) calendar days from the receipt of the Final Offer, Seller may engage in discussions regarding and consummate a divestiture of the Seller Competitive Business; provided that Seller may not enter into any definitive agreement concerning or consummate a divestiture of the Seller Competitive Business with any other third party on terms that are, in the aggregate, less favorable to Seller than those offered by Purchaser (or its designee), unless Purchaser (or its designee) has been provided a summary of the material terms of the offer made by any such third party, and Purchaser has not within a period of ten (10) calendar days following receipt of such third party offer notified Seller in writing that it is willing to acquire the Seller Competitive Business on the terms and conditions contained in such third party offer and within ten (10) calendar days following such written notification from Purchaser, Seller and Purchaser enter into definitive agreements on such terms and conditions. Seller agrees that from the consummation of a Permitted Competitive Acquisition until the earlier to occur of (a) the Executive shall continue date on which Purchaser notifies Seller in writing that Purchaser (or its designee) does not intend to receive major medical insurance coverage benefits from make a Final Offer, (b) the Company's plans end of the Due Diligence Period, provided that Purchaser (or its designee) has failed to make a Final Offer within the Due Diligence Period, (c) the date on which Seller rejects such Final Offer in effect at the time of such termination of employment for the Restricted Periodwriting, and (ivd) the Company shall continue to provide date which is 30 days after the housing allowance set forth in Section 4.04(e) for the lesser end of the Restricted Period and Due Diligence Period, Seller may not engage in discussions with, or provide confidential information to, a third party regarding the period during which divestiture to such party of, or consummate such a divestiture of, the Executive remains a resident of BermudaSeller Competitive Business.
Appears in 1 contract
Samples: Equity and Asset Purchase Agreement (Meadwestvaco Corp)
Noncompetition. During the Employment Period and for a period for two (2) years thereafter (the "RESTRICTED PERIOD"), the Executive shall not directly or indirectly compete with the Company by owning, managing, managing, controlling or participating in the ownership, management or control of or be employed by or engaged in any Competitive Business (as defined herein) in any location in the United States in which the Company is doing business (the "TRADE AREA"). As used herein, a "COMPETITIVE BUSINESS" is any other corporation, partnership, proprietorship, firm or other business entity which is engaged in a "core business of the Company." A "core business of the Company" is the development, manufacture, distribution or sale of a particular type of product, reagent or kit involved in the detection or preparation of nucleic acids in which the Company or DNA Sciences, Inc., a California corporation, has invested or expended more than Two Hundred Thousand Dollars ($200,000) in the eighteen (18) months prior to the "Measurement Date" (as defined herein). The MEASUREMENT DATE shall be the point in time during the Restricted Period that the Executive becomes associated with a Competitive Business whether such association is by employment, engagement or by directly or indirectly owning, managing, controlling or participating in the ownership, management or control of a Competitive Business. In the event of any period of investment or expenditure which commenced less than eighteen (18) months from the Measurement Date the amount invested or expended shall be annualized for such eighteen (18) month period. Notwithstanding the above, the Executive may become employed by or engaged by a "Competitive Business" so long as the Executive (a) The was not directly involved with or participating in the areas of "core business of the Company" which makes the other business a "Competitive Business", or (b) if the Executive acknowledges is not involved, directly, in that during his employment part of the Competitive Business which is competitive with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be "core business of special, unique and extraordinary value to the Company. ." In addition, the Executive hereby agrees that at may be employed by or engaged by any time (i) during business which after the Employment Period, and (ii) (x) following date hereof becomes a Justified Termination and delivery of "Competitive Business," if the Noncompetition Notice by employment or engagement occurred prior to the Company to the Executive, for entering into a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the new "Restricted 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 core business of the Company Company" (whether by acquisition or its Affiliates as through the Company's own initiative), which caused such businesses exist or are in process as of the date of terminationother business to become a Competitive Business. Also, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall this section is not be considered a violation of this Section 9.01 for violated if the Executive to be a passive owner of not owns no more than 25% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")traded Competitive Business.
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 1 contract
Samples: Executive Employment Agreement (Genetic Vectors Inc)
Noncompetition. (ai) The As an inducement to the Company to enter into this Agreement and issue the Shares hereunder, the Executive acknowledges that agrees that, during his (A) his/her period of employment with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (iiB) (x) following a Justified Termination and delivery of in the Noncompetition Notice event that Executive resigns or Executive’s employment is terminated by the Company for any reason, during the period which the Company is paying the Executive severance compensation (which shall be at a rate and an amount equal to the Executive’s salary and health and other insurance benefits received by the Executive immediately prior to the Termination Date), for a such period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment not to exceed one year (the time described in clauses (i) and (ii), collectively, the "Restricted “Noncompete Period"”), he will shall not directly or indirectly own, manage, control, participate in, consult with, render services for for, or in any manner engage in in, any business competing directly or indirectly with the business of as now or hereafter conducted by the Company or any of its Affiliates as such businesses exist or Subsidiaries which are in process as logical extensions of the date of terminationCompany’s current business, within any geographical metropolitan area in which the Company or any of its Affiliates engage Subsidiaries engages or plan has definitive plans to engage in such businesses. It business; provided, that (x) the Executive shall not be considered a violation precluded from purchasing or holding publicly-traded securities of this Section 9.01 for any such entity so long as the Executive to be a passive owner of not more shall hold less than 2% of the outstanding stock units of any such class of a corporation which is publicly traded, so long as the Executive securities and has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten entity and (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (iy) the Company shall be required to continue to pay have notified the Executive of its agreement to provide such severance compensation (1) in the Base Salary for event of resignation, within five days after the Restricted Termination Date, and (2) in the event of termination, on or before the Termination Date). Notwithstanding anything contained herein to the contrary, the Executive’s agreement set forth in clause (B) above shall not apply in the event that the Termination Date occurs after the fifth anniversary of the date of this Agreement.
(ii) During the Noncompete Period, paid the Executive shall not directly or indirectly through another entity (i) induce or attempt to induce any employee of the Company or any of its Subsidiaries to leave the employ of the Company or any of its Subsidiaries, or in accordance any way interfere with the Company's regular pay practices, starting with relationship between the first pay date following delivery Company or any of the Noncompetition Noticeits Subsidiaries and any employee thereof, (ii) hire any person who was an employee of the Company shall be required to pay in a lump sum the or any of its Subsidiaries at any time during Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, ’s employment period except for such employees who have been terminated for at least six months or (iii) induce or attempt to induce any customer, supplier, licensee, franchisor or other business relation of the Executive Company or any of its Subsidiaries to cease doing business with such member, or in any way interfere with the relationship between any such customer, supplier, licensee, franchisor or business relation, on the one hand, and any member of the Company or any of its Subsidiaries, on the other hand.
(iii) The provisions of this Section 3(a) shall continue to receive major medical insurance coverage benefits from the Company's plans in effect survive any termination of this Agreement.
(iv) If, at the time of enforcement of this Section 3(a), a court of competent jurisdiction shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum duration, scope or area reasonable under such termination of employment circumstances shall be substituted for the Restricted Periodstated duration, scope or area and (iv) that such court shall be allowed to revise the Company shall continue restrictions contained herein to provide cover the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period maximum period, scope and the period during which the Executive remains a resident of Bermudaarea permitted by law.
Appears in 1 contract
Samples: Executive Stock Agreement (Town Sports International Holdings Inc)
Noncompetition. (a) The Executive acknowledges that during his employment with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted 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 business of the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 1 contract
Noncompetition. (a) The Executive acknowledges that during his employment with In order to protect the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery goodwill of the Noncompetition Notice by North Safety Companies, following the Company to the Executive, Closing Date for a period ending twelve (12) months after of five years the termination Xxxxx Xxxxxxx covenant to Norcross that neither the Xxxxx Xxxxxxx nor any company owned or controlled by any of the Executive's employment and (y) following Xxxxx Xxxxxxx will, directly or indirectly, anywhere in the world engage in, or have an Unjustified Terminationownership interest in or act as agent, for a period ending twelve (12) months after the termination advisor or consultant of the Executive's employment (the time described in clauses (i) and (ii)or to any person, collectivelyfirm, partnership, corporation or other entity that is engaged in, the "Restricted Period"), he will not directly manufacture or indirectly own, manage, control, participate in, consult with, render services for or in any manner engage in any business competing sale of products that compete with the business of Products manufactured or sold by the Company or its Affiliates as such businesses exist or are in process North Safety Companies as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) Closing Date (the "Noncompetition NoticeCurrent Business").. Nothing in this Section 7.9, however, shall be deemed to prohibit or restrict the Xxxxx Xxxxxxx or any company owned or controlled by the Xxxxx Xxxxxxx -
(bA) Subject From continuing to Section 12.09conduct any business in which any of such companies are currently engaged, none of which businesses currently manufacture or sell Products or any products that compete with Products;
(B) From acquiring or owning less than 5% equity interest in any publicly-traded company (whether or not such company is engaged in a business that competes with the Current Business); or
(C) From acquiring ownership or control of any business, or a majority of the voting securities of any company or other entity that is engaged in a business, that competes with the Current Business if the annual sales from such entity's competing business or entity do not exceed 15% of such business' or entity's total revenues in the event 12-month period immediately preceding such acquisition and if the Company provides Xxxxx Xxxxxxx make a good faith effort to dispose of any such competing business within one year of its acquisition and will, if requested by Norcross, sell such business to Norcross for fair market value (based upon the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery implied valuation of the Noncompetition Notice, (iitotal business acquired) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect cash at the time date of such termination of employment for the Restricted Period, sale and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period on mutually acceptable terms and the period during which the Executive remains a resident of Bermudaconditions.
Appears in 1 contract
Noncompetition. (a) The Executive acknowledges recognizes and understands that during in performing the responsibilities of his employment with the Companyemployment, he haswill occupy a position of fiduciary trust and confidence, pursuant to which he will develop and will continue to, become familiar acquire experience and knowledge with trade secrets respect to Luby’s business. It is the expressed intent and other Confidential Information concerning agreement of Executive and Luby’s that such knowledge and experience shall be used exclusively in the Company furtherance of the interests of Luby’s and its Affiliates and their respective predecessors, and that his services will not in any manner which would be of special, unique and extraordinary value detrimental to the CompanyLuby’s interests. In additionconsideration of the benefits herein, the Executive hereby therefore agrees that at any time (i) during so long as he is employed by Luby’s and for the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months Covenant Period after the termination of the Executive's employment and (y) following an Unjustified Termination’s employment, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted Period"), he Executive will not directly or indirectly ownindirectly:
(a) engage in any other "cafeteria-style" restaurant business (as defined in the resolution of the Board of Directors of the Company dated March 7, manage2001 adopted in connection with Executive's initial employment by the Company) or own any interests whether as an owner, controlshareholder, participate injoint venturer, consult withpartner or otherwise, render services for in any other association or entity that engages, directly or indirectly, in any "cafeteria-style" restaurant business in each case in any state where Luby's or any of its affiliates are conducting business on the date of this Agreement or in any manner engage contiguous state; provided, however, that nothing herein shall prohibit Executive from holding or making passive investments in any business competing limited partnerships or corporations whose securities are traded in a generally recognized market provided that Executive's interest, together with the business those of the Company or its his Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall and family do not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2exceed 1% of the outstanding stock of any class of a shares or interests in such corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").partnership;
(b) Subject to Section 12.09render advice or services to, or otherwise assist, any other person, association, or entity engaged, directly or indirectly, in any "cafeteria-style" restaurant business in any state where Luby's or its affiliates conduct business on the event date of this Agreement or in any contiguous state; or
(c) contact or solicit any employee of Luby’s or any of its affiliates to induce them to terminate his or her employment with Luby’s or such affiliates. For the Company provides avoidance of doubt, the Executive with the Noncompetition Notice, (i) the Company term “cafeteria-style” restaurant business shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery not include any of the Noncompetition Notice, following restaurants or businesses in the manner in which they are currently operated: Barry’s Pizza (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, Airport); Dot Coffee Shop; Xxxxxx Bar-B-Q; Xxxxxx Bar-B-Q Catering; Xxxxxx Bros. Steakhouse; Xxxxxx Burger; Xxxxxx Catering; Xxxxxx Delivery; Pappasito’s Cantina; Xxxxxx Seafood House; Pappadeaux Seafood Kitchen; and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of BermudaYia Yia Mary’s Xxxxxx Greek Kitchen.
Appears in 1 contract
Samples: Employment Agreement (Lubys Inc)
Noncompetition. (a) The Executive acknowledges You acknowledge that during his employment with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment PeriodTerm you performed services of a unique nature for the Company that are irreplaceable, and that your performance of such services to a competing business will result in irreparable harm to the Company and its Affiliates, (ii) during the Employment Term you have had 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 your employment by a competitor, you would inevitably use or disclose such Confidential Information, (iv) the Company and its Affiliates have substantial relationships with their customers and you have had access to these customers, (v) during the Employment Term you have received specialized training from the Company and its Affiliates, and (iivi) (x) following a Justified Termination during the Employment Term you have generated goodwill for the Company and delivery its Affiliates. Accordingly, during the period beginning August 14, 2013, and ending on the two-year anniversary of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment Separation Date (the time described in clauses (i) and (ii“Restriction Period”), collectivelyyou agree that you will not, the "Restricted Period"), he will not directly or indirectly indirectly, own, manage, operate, control, participate inbe employed by (whether as an employee, consult withconsultant, independent contractor or otherwise, and whether or not for compensation) or render services for to any person, firm, corporation or other entity, in whatever form, engaged in competition with the Company or any of its Affiliates or in any manner engage in any other material business competing with the business of the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or any of its Affiliates engage is engaged on the Separation Date or plan in which they have planned, on or prior to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive date, to be engaged in on or after such date, in any locale of any country in which the Company or an Affiliate conducts business. Notwithstanding the foregoing, nothing herein shall prohibit you from being a passive owner of not more than 2% one percent (1%) of the outstanding stock of any class equity securities of a publicly traded corporation which engaged in a business that is publicly tradedin competition with the Company or any of its Affiliates, so long as the Executive has you have no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 1 contract
Samples: Separation Agreement (Commercial Vehicle Group, Inc.)
Noncompetition. The following noncompetition provisions shall apply:
(ai) The Executive acknowledges that shall not, at any time during his employment with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning Company or the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after month period commencing on the termination day immediately following the date (the “Termination Date”) on which his employment with the Company terminates for any reason, without the consent of the Executive's employment and (y) following an Unjustified TerminationBoard, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted Period"), he will not directly or indirectly own, manage, control, participate in, consult with, render services for or in any manner engage in any activity that the Board, in the exercise of its reasonable business competing 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 shall promptly notify the Board (or its representative) in advance in writing (which shall include a description of the activity) of his intention to engage in any activity which could reasonably be deemed to be subject to this noncompetition provision, and the Board shall respond to the Executive in writing within 10 calendar days indicating its approval or objections to the Executive’s engagement in the activity; provided, however, that if the Board (or its representative) does not respond to or request additional information from the Executive within such ten (10) day period the Board’s approval shall be deemed to be granted. If the Executive fails to notify the Board of his intended activity in advance, the Board shall retain all its rights of objections. Notwithstanding the preceding provisions of this subsection (a)(i), this subsection (a)(i) shall not be construed as preventing the Executive from investing his personal -9- assets in any business 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 obligations of this Section 5 and, in particular, compliance with Section 5(a) of this Agreement; provided, however, that all such payments, benefits, or other entitlements under the Agreement are subject to and conditioned upon the Executive’s entering into the Release and Agreement referred to in Section 6(i) of this Agreement.
(iii) During the twenty-four (24) month period commencing on the day immediately following the Termination Date, the Executive shall not (A) influence or attempt to influence any person, firm, association, partnership, corporation, or other entity that is a contracting party with the Company to terminate any written agreement with the Company, except to the extent the Executive is acting on behalf of the 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 Company in good faith; provided, however, that nothing herein shall prohibit the Executive from generally advertising for personnel not specifically targeting any executive or other personnel of the Company.
(iv) During the Term of Employment and for the twenty-four (24) month period immediately thereafter, the Executive shall not publicly criticize or disparage the Company, any Related Company, or any director, officer, executive, or agent of the Company or its Affiliates any Related Company, except as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not may be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")required by law.
(bv) Subject to Section 12.09During the Term of Employment and for the twenty-four (24) month period immediately thereafter, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum not issue any defamatory statements about the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 1 contract
Samples: Employment Agreement (Bally Total Fitness Holding Corp)
Noncompetition. (a) The Executive acknowledges recognizes that the Company's willingness to enter into this Agreement is based in material part on Executive's agreement to the provisions of this paragraph 9 and that Executive's breach of the provisions of this paragraph 9 could materially damage the Company. Executive will not, during the remaining term of his employment with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be for a period of special, unique and extraordinary value to one year after the Company. In addition, the Executive hereby agrees that at any time Employment Termination Date:
(i) during carry on or engage in any business in direct competition with the Employment Periodconstruction, conversion or repair of marine vessels or the fabrication of modular components for offshore drilling rigs or floating production, storage and offloading vessels (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted PeriodBusinesses")) of the Company or any direct or indirect subsidiary of Xxxxxx (collectively, he will not directly or indirectly own, manage, control, participate in, consult with, render services for or the "Companies") in any manner engage State of the United States or other jurisdiction, or specified portions thereof, in which the Executive regularly (a) makes contact with customers of the Company or any business competing with of its subsidiaries, (b) conducts the business of the Company or any of its Affiliates as such businesses exist subsidiaries or are in process as (c) supervises the activities of the date other employees of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage subsidiaries, as identified in such businesses. It shall not be considered Appendix "A" attached hereto and forming a violation part of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly tradedAgreement, so long as the Executive Company or any of its subsidiaries carries on any of the Businesses therein (collectively the "Territory");
(ii) call upon any person who is, at that time, an employee of any of the Companies for the purpose or with the intent of enticing such employee away from or out of the employ of any of the Companies (provided, that this clause (ii) shall not apply with respect to Executive's son who is currently employed by the Company);
(iii) call upon any customer of any of the Companies within the Territory for the purpose of soliciting or selling products or services in direct competition with any of the Companies within the Territory;
(iv) call upon any prospective acquisition candidate, on Executive's own behalf or on behalf of any competitor, which candidate was, to Executive's knowledge after due inquiry, either called upon by any of the Companies or for which any of the Companies made an acquisition analysis, for the purpose of acquiring such entity; or
(v) disclose customers, whether in existence or proposed, of any of the Companies to any person, firm, partnership, corporation or business for any reason or purpose whatsoever except to the extent that any of the Companies has no active participation in the past disclosed such information to the public for valid business reasons. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Executive from acquiring as an investment (i) not more than 1% of such corporation. The terms the capital stock of Section 9.01(a)(ii)(xa competing business, whose stock is traded on a national securities exchange, the Nasdaq Stock Market or similar market or (ii) shall be not more than 5% of no force or effect the capital stock of a competing business whose stock is not publicly traded unless the Board consents to such acquisition. Furthermore, notwithstanding the above, the foregoing covenant shall not prohibit Executive from carrying on or engaging in the construction of aluminum marine vessels, as long as such activity is not conducted in association in any manner with any company with which the Company notifies has had acquisition discussions within the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")past two years.
(b) Subject Because of the difficulty of measuring economic losses to Section 12.09the Company as a result of a breach of the foregoing covenant, and because of the immediate and irreparable damage that could be caused to the Company for which it would have no other adequate remedy, Executive agrees that the foregoing covenant may be enforced by the Company, in the event of breach by him, by injunctions and restraining orders. Executive further agrees to waive any requirement for the Company provides Company's securing or posting of any bond in connection with such remedies.
(c) The parties hereto agree that the foregoing covenants in this paragraph 9 impose a reasonable restraint on Executive in light of the activities and business of the Companies on the date of the execution of this Agreement and the current plans of the Companies.
(d) It is further agreed by the parties hereto that in the event that after the Employment Termination Date Executive enters into a business or pursues other activities not in competition with the Noncompetition NoticeBusinesses of the Companies or similar activities or businesses in locations the operation of which, under such circumstances, does not violate clause (a)(i) of this paragraph 9, and in any event such new business, activities or location are not in violation of this paragraph 9 or of Executive's obligations under this paragraph 9, if any, Executive shall not be chargeable with a violation of this paragraph 9 if the Companies shall thereafter enter the same, similar or a competitive (i) business, (ii) course of activities or (iii) location, as applicable.
(e) The covenants in this paragraph 9 are severable and separate, and the enforceability of any specific covenant shall not affect the provisions of any other covenant. Moreover, in the event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unenforceable, then it is the intention of the parties that such restrictions be enforced to the fullest extent permitted by law, and the Agreement shall thereby be reformed.
(f) All of the covenants in this paragraph 9 shall be construed as an agreement independent of any other provision in this Agreement, and the existence of any claim or cause of action of Executive against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Company of such covenants.
(g) The Company and Executive hereby agree that this covenant is a material and substantial part of this Agreement.
(h) Executive acknowledges that the severance payment provided under paragraph 3(b) is conditioned upon Executive's fulfilling the noncompetition and nondisclosure provisions of this Agreement as set forth in this paragraph 9 and paragraph 10 below. In addition, such payment is conditioned upon Executive's refraining, for a one year period following the Employment Termination Date, from carrying on or engaging in, as an employee, officer, director, shareholder, owner, partner, joint venturer, or in a managerial capacity, whether as an executive, independent contractor, consultant or advisor, or as a sales representative or otherwise, any business in direct competition with the Businesses of the Companies in the Territory (except as provided in paragraph 9(a) with respect to construction of aluminum marine vessels), to the extent such activity is not prohibited by paragraph 9(a). In the event Executive shall at any time materially breach any noncompetition or nondisclosure agreements contained in this Agreement, including the agreements in this paragraph 9(h), the Executive shall forfeit to the Company, and promptly repay to the Company, a pro rata portion of the severance payment corresponding to the period of such breach (i.e., $195,290 times the quotient of the number of days during which the breach occurs divided by 365). Executive acknowledges that any such forfeiture of payments would be an exercise of the Company's right to terminate its performance hereunder upon Executive's breach of this Agreement and would not constitute and shall not be characterized as the imposition of liquidated damages. It is specifically understood by the parties that the provisions of paragraph 13 of this Agreement apply to this paragraph 9.
(i) Any dispute regarding the reasonableness of the covenants and agreements set forth in this paragraph 9 or the territorial scope or duration thereof or the remedies available to the Company upon any breach of such covenants and agreements, shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid governed by and interpreted in accordance with the Company's regular pay practices, starting with the first pay date following delivery laws of the Noncompetition NoticeState of United States or other jurisdiction in which the alleged prohibited competing activity or disclosure occurs, (ii) and with respect to each such dispute, the Company shall be required and Executive each hereby irrevocably consent to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery exclusive jurisdiction of the Noncompetition Noticestate and federal courts sitting in the relevant State (or, (iii) in the Executive shall continue to receive major medical insurance coverage benefits from case of any jurisdiction outside the Company's plans in effect at United States, the time relevant courts of such termination jurisdiction) for resolution of employment for the Restricted Periodsuch dispute, and (iv) agree to be irrevocably bound by any judgment rendered thereby in connection with such dispute, and further agree that service of process may be made upon him or it in any legal proceeding related to this paragraph 9 and/or Appendix "A" by any means allowed under the Company shall continue laws of such jurisdiction. Each party irrevocably waives any objection he or it may have as to provide the housing allowance set forth venue of such suit, action or proceeding brought in Section 4.04(e) for such a court or that such a court is an inconvenient forum. The parties agree that it is their intent and desire that the lesser provisions of this Agreement be enforced to the Restricted Period fullest extent permitted under applicable law, whether now or hereafter in effect, and therefore, to the period during which extent permitted by applicable law, the Executive remains a resident parties hereto waive any provision of Bermudaapplicable law that would render any provision of this paragraph 9 invalid or unenforceable.
Appears in 1 contract
Noncompetition. (a) The Executive acknowledges agrees that during he will not engage in Competition (as defined below) while he is employed by the Company, and if he voluntarily resigns from the employ of the Company other than pursuant to a Constructive Discharge prior to the first anniversary of the Effective Date, for a period of twelve months after such termination of employment. In the event that the Executive engages in Competition within the twelve-month period immediately following the termination of his employment with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value for any reason (including any termination prior to the Company. In additionfirst anniversary of the Effective Date), the Executive hereby agrees that at any time (i) during his Initial Options shall be immediately forfeited to the Employment Period, extent not previously exercised and (ii) he shall forfeit (x) following a Justified Termination and delivery or, in the case of the Noncompetition Notice by the Company prior payment to the Executive, for a period ending twelve (12shall repay together with interest at the Applicable Federal Rate, determined in accordance with Section 1274(d) months after the termination of the Executive's Internal Revenue Code or any successor provision thereto) a pro rata portion of the severance benefits provided for in Section 5(d)(i) and/or Section 5(d)(ii). Such pro rata portion shall be based upon (x) the number of days remaining between the first day on which the Executive engages in Competition and the first anniversary of his last day of employment and by the Company, divided by (y) 365. Except as otherwise provided with respect to Competition following an Unjustified Termination, for a period ending twelve (12) months after voluntary resignation prior to the termination first anniversary of the Executive's employment (the time described in clauses (i) and (ii), collectivelyEffective Date, the Company's sole remedy for the breach of this Section shall be as set forth in the preceding two sentences. The Executive shall be deemed to be engaging in "Restricted Period"), Competition" if he will not directly or indirectly ownindirectly, manageowns, controlmanages, participate operates, controls or participates in the ownership, management, operation or control of or is connected as an officer, employee, partner, director, consultant or otherwise with, or has any financial interest in, consult with, render services for or in any manner engage in any business competing with engaged in the financial services business of in the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area states in which the Company or its Affiliates engage subsidiaries or plan to engage affiliates operate a commercial banking or other material financial services business which is a material part of such business and is in such businessesmaterial competition with the business conducted by the Company at the time of the termination of his employment with the Company or its subsidiaries or affiliates. It shall not be considered a violation Ownership for personal investment purposes only of this Section 9.01 for the Executive to be a passive owner of not more less than 2% of the outstanding voting stock of any class of publicly held corporation shall not constitute a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")violation hereof.
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 1 contract
Samples: Employment Agreement (Bank One Corp)
Noncompetition. (a) The Executive acknowledges that during his employment with As a necessary inducement for Buyer to enter into this Agreement and consummate the Companytransactions contemplated hereby, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby Parent agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after of three years commencing on the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment Closing Date (the time described in clauses (i) and (ii), collectively, the "Restricted Noncompete Period"), he will Parent shall not, and shall not cause or permit any of its Subsidiaries or any other entity under their control to, engage directly or indirectly ownindirectly, managein any capacity, controlin any activities that Compete with the Senior Living Services Business within the United States. If Parent is acquired by, participate in, consult or merges or consolidates with, render services for or any Person, the restriction in this Section 5.12 shall not apply to any manner engage in any business competing with the business activities of the Company acquiror or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or Subsidiaries (other than Parent and its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice"Subsidiaries).
(b) Subject The provisions of this Section 5.12 shall not restrict the ability of Parent or any of its Subsidiaries from engaging in the following activities:
(1) the ownership of capital stock or other equity interests of a Competing SLS Business if (a) such capital stock or other equity interests are traded on a national or regional stock exchange or are traded on the Nasdaq National Market, and (b) Parent, directly or indirectly, is the beneficial owner of not more than five percent (5%) of such Person's outstanding capital stock or other equity interests, so long as Parent does not otherwise control such Person; or
(2) the acquisition of any Person which conducts, participates or engages in, or owns or has an interest in a Competing SLS Business, if the gross sales of such Person from the Competing SLS Activities for the prior fiscal year preceding the date on which the acquisition is consummated and in any fiscal year during the Noncompete Period, do not represent (a) more than twenty percent (20%) of the gross sales (including sales from the Competing SLS Activities) of such Person (including its Subsidiaries) or (b) more than $50 million; or
(3) the acquisition of any Person which conducts, participates or engages in, or owns or has an interest in a Competing SLS Business, if the gross sales of such Person (including its Subsidiaries) from the Competing SLS Activities for the prior fiscal year preceding the date on which the acquisition is consummated, represent (a) twenty percent (20%) or more of the gross sales (including sales from the Competing SLS Activities) of such Person and (b) more than $50 million, provided, that within one year after such acquisition, revenues derived from the Competing SLS Activities represent less than twenty percent (20%) of the gross sales (including sales from the Competing SLS Activities) of such Person (without giving effect to transfers of assets of such Person to or from Buyer or any of its Subsidiaries during such period) or constitute less than $50 million.
(c) If a court of competent jurisdiction declares that any term or provision of this Section 12.095.12 is invalid or unenforceable, the Parties agree that the court making the determination of invalidity of 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 modified.
(d) Parent acknowledges that Buyer would not have an adequate remedy at law in the event of a breach or violation of this Section 5.12 by Parent or any of its Affiliates and hereby consents to the Company provides granting by any court of competent jurisdiction of an injunction or other equitable relief, without the Executive with necessity of posting a bond, cash or otherwise, and without the Noncompetition Noticenecessity of actual monetary loss being proved or Buyer's establishing the inadequacy of any remedy at Law, (i) and order that the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time breach or threatened breach of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.provisions may be effectively restrained. TC1: 469823 Execution Stock Purchase Agreement
Appears in 1 contract
Samples: Stock Purchase Agreement (Marriott International Inc /Md/)
Noncompetition. (a) The Executive acknowledges that during his her employment with the Company, he she has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his her services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve three (123) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve three (123) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted Period"), he she 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 business of the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum an amount equal to 25% of the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of BermudaBermuda and shall reimburse the Executive for any income taxes incurred by the Executive as a result such housing allowance (including taxes imposed on the reimbursement payment itself).
Appears in 1 contract
Noncompetition. (a) The Executive acknowledges that during his employment with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and Company, its Affiliates Subsidiaries, and their respective predecessors, and that his services will be of special, unique and extraordinary value to the CompanyCompany and its Subsidiaries. In addition, in consideration of the rights to the payments set forth in Article 5 of this Agreement, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by his employment with the Company to the Executive, and for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted ‘‘Noncompetition Period"’’), he will not directly or indirectly own, manage, control, participate in, consult with, render services (as an employee, consultant or in any other capacity) for or in any manner engage in any business competing with the business insurance and reinsurance businesses of the Company or its Affiliates Subsidiaries as such businesses exist or are in process as of the date termination of terminationExecutive's employment, within any geographical area in which the Company or its Affiliates engage or plan to Subsidiaries engage in such businesses; provided, however, that, if such termination is by the Company not for Cause or by the Executive for Good Reason under Section 5.03 or termination is the result of Change of Control of the company under section 5.04, the Executive shall be bound by this Section 9.01 only to extent that the Company provides to the Executive the benefits set forth in Section 5.03 and 5.04; provided, further, that, if such termination is by reason of Executive's resignation or leaving of his employment other than for Good Reason, the Executive shall be bound by this Section 9.01 for the period of up to twelve (12) months if the Company, at its sole option, within thirty (30) days following such termination, elects in writing to (a) pay the Executive an amount equal to six (6) months of the Base Salary (such amount to be payable in equal monthly installments over such period). It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 1 contract
Noncompetition. Except with respect to its performance of Seller’s Affiliates’ obligations under the Transition Agreement, during the period from the Closing Date until the date that is the *** anniversary of the Closing Date (a) The Executive acknowledges that during his employment with the Company“Restriction Period”), he haseach of Buyer and Seller shall not, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and shall ensure that its Affiliates and their respective predecessorsdo not, and that his services will be directly or indirectly, including through any acquisition, license, partnership, joint venture or distribution arrangement, market, distribute, offer for sale, or sell anywhere in the Territory, or develop, test, or manufacture for sale in the Territory, any analgesic pharmaceutical product containing a conopeptide as its active ingredient, other than in the case of specialBuyer, unique and extraordinary value the Product, (a “Competing Product”), or knowingly aid or assist any third party in doing any of the foregoing. Notwithstanding anything herein to the Companycontrary, nothing in this Section 6.11 shall prohibit or restrict the ability of Buyer, Seller or their Affiliates, directly or indirectly, to retain any customers of the Product (including customers of the Product in the Territory) as a consultant on matters other than relating to a Competing Product or beneficially own less than *** percent (***%) of the outstanding securities of any publicly-traded Person. In additionIf a Party or any of its controlled Affiliates or any Person that directly or indirectly owns a majority of the voting power of the capital stock of such Party (such Person, the Executive hereby agrees that a “Parent”) signs a definitive agreement with respect to a merger or acquisition by which it would acquire rights (other than residual financial rights) in a Competitive Product at any time (i) during the Employment Restriction Period, and then it (iior its applicable controlled Affiliate or Parent) (x) following a Justified Termination and delivery shall have *** months from the closing of such definitive agreement to divest itself of such rights in the Noncompetition Notice by the Company to the ExecutiveCompetitive Product and, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectivelyduring such *** month period, the "Restricted Period")sale, he will not directly marketing or indirectly own, manage, control, participate in, consult with, render services for or in any manner engage in any business competing with the business distribution of the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It Competitive Product shall not be considered a in violation of this Section 9.01 for 6.11. In the Executive case of divestiture under the preceding sentence, such divestiture can occur by either (x) an outright sale of all rights in the Competitive Product to be a passive owner of not third party or (y) a license to one or more than 2% third parties of the outstanding stock right to sell, market and distribute *** Portions of any class of this page have been omitted pursuant to a corporation which is publicly traded, request for Confidential Treatment and filed separately with the Commission. such Competitive Product so long as such Party and its Subsidiaries and parent entities only retain residual financial rights with respect to such Competitive Product and do not exercise or have the Executive has no active participation ability to exercise any role or influence in any manner over the conduct of the business of such corporationCompetitive Product (other than the protection of reputational, intellectual property or similar rights or interests). The terms For the avoidance of doubt, if a Party enters into a transaction with any Person whereby such Party undergoes a Change in Control, then the foregoing limitations and requirements of this Section 9.01(a)(ii)(x) 6.11 shall not apply to such acquiring Person or any of its Affiliates other than the applicable Party and its controlled Affiliates and Parents prior to such transaction nor shall such Party and its controlled Affiliates and Parents be prohibited from entering into intercompany transfers or services with such Person or its other Affiliates as do not relate to a Competing Product. It is further understood and agreed that the remedies at law are inadequate in the case of any breach of this covenant and that Buyer or Seller, as the case may be, shall be entitled to equitable relief, including the remedy of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention specific performance, with respect to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time any breach of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermudacovenant.
Appears in 1 contract
Samples: Asset Purchase Agreement (Azur Pharma Public LTD Co)
Noncompetition. (a) The Executive acknowledges that during his During your employment with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending of twelve (12) months after the following your voluntary or involuntary termination of employment, you shall not become an owner in, shareholder with more than a 2% equity interest in, investor in, or an employee, contractor, consultant, advisor, representative, officer, director, or agent of, a trade or business that offers products and services that are the Executive's same or substantially similar to the products and services provided by the Employer Company in any geographic market in which the Employer Company conducts business (“Competitor”); provided, however, that the duties and responsibilities of said employment or engagement as an owner in, shareholder with more than 2% equity interest in, investor in, employee, contractor, consultant, advisor, representative, officer, director or agent are (i) the same, similar, or substantially related to your current duties and responsibilities or duties or responsibilities performed by you while employed by the Employer Company at any time during a six (6) month period prior to your date of termination of employment and (yii) following an Unjustified Termination, related to or concerning the Competitor’s business activities in the Restricted Territory. The parties agree and affirm that their intention with respect to Paragraph 5 is that your activities shall be limited only for a period ending the twelve (12) months month period after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted 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 business of the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for any reason. The provisions calling for a “look back” of six (6) calendar months prior to the date of termination of employment are intended solely as a means of identifying the duties and responsibilities that will define the restricted activities covered by Paragraph 5 and are not intended to nor shall they, under any circumstances, be construed to define the length or term of any such restriction. For purposes of Paragraph 5, the term “Restricted Territory” means the geographic area that is part of your current duties and responsibilities or the geographic area that was part of your duties and responsibilities within a period of six (6) month period prior to the date of your termination of employment. If a court of competent jurisdiction determines that the Restricted PeriodTerritory as defined herein is too restrictive, and (iv) then the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of parties agree that said court may reduce or limit the Restricted Period and Territory to the period during which largest acceptable area so as to enable the Executive remains a resident enforcement of BermudaParagraph 5.
Appears in 1 contract
Samples: Executive Employment Agreement (Laboratory Corp of America Holdings)
Noncompetition. (a) The Executive acknowledges Each of Seller, Xxx Xxxxxxx and Xxxxxxx Xxxxxxx covenants and agrees that it shall not engage in, and shall cause Seller’s Affiliates (excluding the Non-Restricted Affiliates) not to engage in, directly or indirectly, during the Production Period and for a period of one (1) year thereafter, the wholesale mortgage origination business in the states or other jurisdictions in which the Production Assets are located (as of the Closing Date) or from which Mortgage Loans were originated with the Production Assets on or prior to the Effective Date, including but not limited to serving as a consultant, shareholder or investor (other than as a passive investor in less than one percent (1%) of the outstanding capital stock of a publicly traded corporation). Seller further covenants and agrees that during his employment with the CompanyProduction Period and for a period of one (1) year thereafter, he hasSeller will not, and will continue Seller shall cause its Affiliates (excluding the Non-Restricted Affiliates) not to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessorsdirectly or indirectly, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Periodhire any employee of Purchaser (including Hired Employees), and (ii) solicit or induce, or attempt to solicit or induce, any employee of Purchaser (xincluding Hired Employees) following to terminate its employment or (iii) solicit or induce, or attempt to solicit or induce, any broker that has a Justified Termination and delivery of the Noncompetition Notice by the Company business relationship with Purchaser (including brokers that had a business relationship with Seller prior to the ExecutiveClosing Date) to reduce the amount of business such broker conducts with Purchaser or terminate such business relationship. Notwithstanding anything in this Section 6.8 to the contrary, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted Period"), he will this covenant shall not directly prohibit or indirectly own, manage, control, participate in, consult with, render services for or in any manner engage in any business competing with the business of the Company limit Seller or its Affiliates as such businesses exist from engaging, currently or are in process as the future, in the wholesale mortgage origination of WestWorks Loans in any geographic location.
(b) Each of Seller, Xxx Xxxxxxx and Xxxxxxx Xxxxxxx hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation provisions of this Section 9.01 6.8 are reasonable and are no broader than are necessary to protect the legitimate business interests of Purchaser.
(c) Each of Seller, Xxx Xxxxxxx and Xxxxxxx Xxxxxxx acknowledges that breach of any of the provisions of this Section 6.8 will give rise to irreparable injury to Purchaser, inadequately compensable in damages. Accordingly, Purchaser shall be entitled to seek injunctive relief to prevent or cure breaches or threatened breaches of the provisions of this Agreement and to seek specific performance of the terms and provisions hereof in any court of competent jurisdiction, in addition to any other legal or equitable remedies which may be available. Each of Seller, Xxx Xxxxxxx, Xxxxxxx Xxxxxxx and Purchaser further acknowledges and agrees that the enforcement of a remedy hereunder by way of injunction shall not prevent it from earning a reasonable livelihood. Each of Seller, Xxx Xxxxxxx, Xxxxxxx Xxxxxxx and Purchaser further acknowledges and agrees that the covenants contained herein are necessary for the Executive to be a passive owner protection of not more than 2% Purchaser’s legitimate business interests and are reasonable in scope and content.
(d) Purchaser and each of Seller, Xxx Xxxxxxx and Xxxxxxx Xxxxxxx agree and stipulate that the agreements and covenants contained in this Section 6.8 are fair and reasonable in light of all of the outstanding stock facts and circumstances of any class the relationship between Purchaser and each of a corporation which is publicly tradedSeller, so long as Xxx Xxxxxxx and Xxxxxxx Xxxxxxx, however, Purchaser, Seller, Xxx Xxxxxxx and Xxxxxxx Xxxxxxx are aware that in certain circumstances courts have refused to enforce certain agreements not to compete. Therefore, in furtherance of, and not in derogation of the Executive has no active participation provisions of Section 6.8, Purchaser, Seller, Xxx Xxxxxxx and Xxxxxxx Xxxxxxx agree that in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following event a Justified Termination of its intention court should decline to enforce the provisions of this Section 9.01(a)(ii)(x) (6.8, that this Section 6.8 shall be deemed to be modified or reformed to restrict the "Noncompetition Notice").
(b) Subject limitations on competition with Purchaser to Section 12.09the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided, however, in no event shall the event the Company provides the Executive with the Noncompetition Noticeprovisions of this Section 6.8 be deemed to be more restrictive to Seller, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted PeriodXxx Xxxxxxx or Xxxxxxx Xxxxxxx, paid in accordance with the Company's regular pay practicesas applicable, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermudathan those contained herein.
Appears in 1 contract
Samples: Asset Purchase Agreement (United Financial Mortgage Corp)
Noncompetition. (a) The Executive acknowledges a. Employee agrees that during his employment with the Company, he has, term of this Agreement and will continue to, become familiar with trade secrets and other Confidential Information concerning for one year after the Employment Termination Date (except that in the event of termination or nonrenewal by the Company during the period commencing six (6) months preceding the date of a Change in Control and its Affiliates and their respective predecessorsending two (2) years following the date of a Change in Control, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time neither clause (i) of this Section 12(a) nor Section 12(b) shall apply to Employee), Employee shall not (i) directly or indirectly solicit any person (natural or otherwise) to develop, construct, purchase or sell any multifamily or retail real estate or a mortgage loan financing such type of real estate if the person being solicited is or had been a developer or contractor with, or purchaser from or seller to, the Company of such type of property during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months prior to the Employment Termination Date or (ii) recruit or otherwise solicit or induce any person who is at the time an employee or consultant of the Company to terminate his employment with, or otherwise cease his relationship with, the Company, or hire any such employee or consultant who has left the employ of the Company within one (1) 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 Company whose employment has been terminated by the Company and, provided further, that if Employee has terminated his employment of his own volition, this restriction upon recruiting employees or consultants shall run for two (2) years after the termination Employment Termination Date. For example, if the term hereunder is not renewed pursuant to Section 24 hereof, then for a one-year period following the date of such nonrenewal, Employee shall be subject to this Section 12(a) and Section 12(b) hereof; provided, however, that if a Change in Control occurs during the six-month period following the date of such nonrenewal (and such nonrenewal has been at the election of the Executive's employment and (y) following an Unjustified TerminationCompany), for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses Employee shall not be subject to clause (i) of this Section 12(a) or Section 12(b) hereof from and (ii), collectively, the "Restricted 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 business of the Company or its Affiliates as such businesses exist or are in process as of after the date of terminationsuch Change in Control. By way of additional example, within any geographical area if a Change in which Control occurs and an Employment Termination Date occurs (other than an Employment Termination Date occurring as a result of Employee's election not to renew this Agreement) during the Company or its Affiliates engage or plan to engage two-year period commencing on the date of the Change in such businesses. It Control, Employee shall not be considered a violation subject to clause (i) of this Section 9.01 for 12(a) or Section 12(b) hereof from and after the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Employment Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the Date."Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 1 contract
Samples: Employment and Noncompetition Agreement (Berkshire Realty Co Inc /De)
Noncompetition. Except as otherwise consented to or approved in writing by Buyer, Xxxxxxxx agrees that for a period of 36 months from the date hereof, Xxxxxxxx will not, directly or indirectly acting alone or as a member of a partnership or as an officer, director, employee, consultant, representative, holder of, or investor in as much as 5% of any security of any class of any corporation or other business entity (ai) The Executive acknowledges that during his employment engage in competition with the business or businesses of well servicing, oil field trucking and oil and gas contract drilling conducted by the Company, he hasBuyer or any affiliate of Buyer on the date hereof, or in any service business the services of which are provided and will continue tomarketed by the Company, become familiar with trade secrets and other Confidential Information concerning Buyer or any affiliate of Buyer on the date hereof within a 000-xxxx xxxxxx xx Xxxxxxx, Xxxxx; (ii) request any present customers or suppliers of the Company and its Affiliates and to curtail or cancel their respective predecessorsbusiness with Buyer or any affiliate of Buyer; (iii) disclose to any person, and that his services will be firm or corporation any trade, technical or technological secrets of special, unique and extraordinary value to 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. In additionExcept as otherwise consented to or approved in writing by Buyer, the Executive hereby Xxxxxx agrees that at for a period of 36 months from the date hereof, Xxxxxx will not, directly or indirectly acting alone or as a member of a partnership or as an officer, director, employee, consultant, representative, holder of, or investor in as much as 5% of any time security of any class of any corporation or other business entity (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted 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 competition with the business of oil and gas contract drilling conducted by the Company, Buyer or any affiliate of Buyer on the date hereof, or any service business the services of which are provided and marketed by the Company, Buyer or any affiliate of Buyer on the date hereof within a 000-xxxx xxxxxx xx Xxxxxxx, Xxxxx; (ii) request any present customers or suppliers of the Company to curtail or its Affiliates cancel their business with Buyer or any affiliate of Buyer; (iii) disclose to any person, firm 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; however, nothing in this Section 3.1 shall be construed to prevent Xxxxxx from being engaged in the oil and gas contract drilling business as an employee of a party or entity that is not owned in whole or in part by Xxxxxx. Xxxxxxxx and Xxxxxx agree that if either the length of time or geographical area set forth in the Section 3.1 is deemed too restrictive in any court proceeding, such businesses exist or court may reduce such restrictions to those which it deems reasonable under the circumstances. The obligations expressed in this Section 3.1 are in process as addition to any other obligations that the Shareholders may have under the laws of the date of termination, within any geographical area states in which they do 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 Company 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. Xxxxxxxx and Xxxxxx further agree and acknowledge that the Company, Buyer and its affiliates do not have any adequate remedy at law for the breach or its Affiliates engage threatened breach by either Xxxxxxxx or plan Xxxxxx of this covenant, and agree that the Company, Buyer or any affiliate of Buyer may, in addition to engage the other remedies which may be available to it hereunder, file a suit in equity to enjoin Xxxxxxxx or Xxxxxx from such businessesbreach or threatened breach. It If any provisions of this Section 3.1 are held to be invalid or against public policy, the remaining provisions shall not be considered a violation of affected thereby. Xxxxxxxx and Xxxxxx acknowledge that the covenants set forth in this Section 9.01 3.1 are being executed and delivered by such Shareholder in consideration of the covenants of Buyer contained in this Agreement, and for other good and valuable consideration, receipt of which is hereby acknowledged. In return for the Executive noncompetition covenants contained in this Section 3.1, Buyer shall pay $255,000 to be a passive owner of not more than 2% of the outstanding stock of Xxxxxx Xxxxxxxx and $45,000 to X. X. Xxxxxx, in 36 equal monthly installments, commencing March 1, 1998. Notwithstanding any class of a corporation which is publicly traded, so long as the Executive has no active participation provision contained in the business of such corporation. The terms of this Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.093.1, in the event that Buyer fails to employ Xxxxxx or terminates Xxxxxx without cause, the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery obligations of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth Xxxxxx contained in Section 4.04(e) for 3.1 of this Agreement shall terminate and be of no further force and effect however, the lesser obligations of the Restricted Period Buyer under this Section 3.1 will continue in full force and the period during which the Executive remains a resident of Bermudaeffect.
Appears in 1 contract
Noncompetition. (a) The Executive acknowledges that during his employment Except with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning prior written consent of the Company authorized by a resolution adopted by the Board, for the period beginning upon the date hereof and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time ending on (i) during in the Employment Period, and (ii) (x) following a Justified Termination and delivery event of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment by the Executive for Good Reason pursuant to Section 7(c) or by the Company pursuant to Section 7(d) hereof and the Executive is receiving payments from the Company pursuant to Section 8(d) hereof, the date on which the last such payment is received; or (yii) following an Unjustified Termination, for a period ending twelve (12) months after in the event of the voluntary termination of the Executive's employment (by the time described in clauses (iExecutive pursuant to Section 7(d) and (ii), collectivelyhereof or termination by the Company for Cause, the "Restricted Period"), he will date which is nine (9) months from the Termination Date; Executive shall not directly or indirectly ownas owner, managepartner, controljoint venturer, participate instockholder, consult withemployee, render services for broker, agent, principal, trustee, corporate officer, director, licensor, or in any manner capacity whatsoever engage in, become substantially financially interested in, employed by or have any connection with, any business engaged principally in the processing of electronic hotel reservations or travel agent commissions or providing hotel property system services or providing hotel representation or marketing services in any business competing with the business of country where the Company or any of its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage subsidiaries is then engaged in such businesses. It shall not be considered a violation of this Section 9.01 for the business; provided, however, that Executive to be a passive owner of not more than 2% of the outstanding stock may own any securities of any class of a corporation which is engaged in such business and is publicly traded, so long as the Executive has no active participation in the business traded stock or securities of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, agrees that for a period of one (i1) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance year following termination of employment with the Company's regular pay practices, starting with the first pay date following delivery Executive will not solicit or in any manner encourage employees of the Noncompetition NoticeCompany, its subsidiaries or parent to leave its employ.
(iic) In case one or more of the Company 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 required 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 pay be excessively broad with regard to time, duration, geographic scope or activity that term shall be construed in a lump sum manner to enable it to be enforced to the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermudaextent compatible with applicable law.
Appears in 1 contract
Noncompetition. 11.1 Until the Date of Termination, Executive agrees not to enter into competitive endeavors and not to undertake any commercial activity which is contrary to the best interests of the Corporation or its affiliates, including becoming an employee, owner (except for passive investments of not more than three percent of the outstanding shares of, or any other equity interest in, any company or entity listed or traded on a national securities exchange or in an over-the-counter securities market), officer, agent or director of (a) The Executive acknowledges that during his employment any firm or person engaged in the operation of a business engaged in the acquisition of industrial businesses or (b) any firm or person which either directly competes with a line or lines of business of the Corporation accounting for ten percent (10%) or more of the Corporation's gross revenues or earnings before taxes or derives ten percent (10%) or more of such firm's or person's gross revenues or earnings before taxes from a line or lines of business which directly compete with the CompanyCorporation. Notwithstanding any provision of this Agreement to the contrary, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and Executive agrees that his services will be breach of special, unique and extraordinary value the provisions of this Section 11.1 shall permit the Corporation to terminate Executive's employment for Cause in accordance with Section 6.1(b) hereof.
11.2 After the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Date of Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12of time equal in years to the multiple of annual salary received by Executive pursuant to Sections 7.6(b) months after the termination of the Executive's employment and (y7.7(b) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted Non-Competition Period"), he will Executive agrees not directly or indirectly ownto become an employee, manage, control, participate in, consult with, render services owner (except for or in any manner engage in any business competing with the business of the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner investments of not more than 2% three percent of the outstanding stock shares of, or any other equity interest in, any company or entity listed or traded on a national securities exchange or in an over-the-counter securities market), officer, agent or director of any class of firm or person which directly and substantially competes with a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than Corporation accounting for ten percent (10%) or more of the Corporation's gross revenues or earnings before taxes. During the Non-Competition Period, Executive will be available to answer questions and provide advice to the Corporation; provided, however, that such requirement shall not unreasonably interfere with any other of Executive's activities which Executive is then pursuing and which are not otherwise prohibited by this Section 11. Also, during the Non- Competition Period, Executive will retain in confidence any and all confidential information known to him concerning the Corporation and its business days following a Justified Termination and shall not use or disclose such information without the approval of its intention the Corporation except to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")extent such information becomes public or as may be required by law.
(b) Subject 11.3 Executive acknowledges and agrees that damages for breach of the covenant not to compete in this Section 12.0911 will be difficult to determine and will not afford a full and adequate remedy, and therefore Executive agrees that the Corporation, in addition to seeking actual damages pursuant to the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance procedures set forth in Section 4.04(e) for the lesser 14 below, may seek specific enforcement of the Restricted Period covenant not to compete in any court of competent jurisdiction, including, without limitation, by the issuance of a temporary or permanent injunction, without the necessity of a bond. Executive and the Corporation agree that the provisions of this covenant not to compete are reasonable. However, should any court or arbitrator determine that any provision of this covenant not to compete is unreasonable, either in period during of time, geographical area, or otherwise, the parties agree that this covenant not to compete should be interpreted and enforced to the maximum extent which the Executive remains a resident of Bermudasuch court or arbitrator deems reasonable.
Appears in 1 contract
Noncompetition. (a) The Executive Chairman acknowledges that during in the course of his employment with the Company, he hasCompany and during the continuance of the Service Period; (i) the Chairman will become familiar, and will continue toduring the course of the Chairman's employment by the Company or any of its subsidiaries or affiliates or any predecessor prior to the date of this Agreement, the Chairman has become familiar familiar, with trade secrets and other Confidential Information concerning customer lists of and proprietary information regarding the business of the Company and its Affiliates subsidiaries and their respective affiliates and predecessors, ; (ii) such trade secrets and that his customer lists of and proprietary information regarding the business of the Company and its subsidiaries and affiliates and predecessors are confidential and the exclusive property of the Company; and (iii) the Chairman's services have been and will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby The Chairman agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted Period"), he will not directly disclose, divulge, discuss, copy or indirectly own, manage, control, participate in, consult with, render services for otherwise use or cause to be used in any manner engage in any business competing with competition with, or contrary to the interests of, the Company, the trade secrets and customer lists of and proprietary information regarding the business of the Company or and its Affiliates as such businesses exist or are in process as subsidiaries and affiliates and predecessors.
(b) The Chairman agrees that during the Service Period and until five years after termination of the date Service Period, the Chairman will not in any manner, directly or indirectly, through any person, firm or corporation, alone or as a member of terminationa partnership or as an officer, within director, shareholder, investor or employee of or in any geographical area other corporation or enterprise or otherwise, engage or be engaged in, or assist any other person, firm, corporation or enterprise in which engaging or being engaged in, any business then actively being conducted by the Company or any of its Affiliates engage subsidiaries or plan affiliates or any business similar to engage the businesses then conducted or contemplated to be conducted by the Company or any of its subsidiaries or affiliates.
(c) Nothing in such businesses. It shall not be considered a violation of this Section 9.01 for 3.2 will prohibit the Executive to be Chairman from being: (i) a shareholder in a mutual fund or a diversified investment company or (ii) a passive owner of not more than 25% of the outstanding stock equity securities of any class of a corporation or other entity which is publicly traded, so long as the Executive Chairman has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force corporation or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")other entity.
(bd) Subject to Section 12.09, in In the event the Company provides Chairman violates any legally enforceable provision of this Agreement as to which there is a specific time period during which the Executive with Chairman is prohibited from taking certain actions or from engaging in certain activities, as set forth in this Agreement, then, in such event, the Noncompetition Notice, violation shall toll the running of such time 5 period from the date of such violation until the violation ceases.
(ie) The Chairman acknowledges that he has carefully considered the nature and extent of the restrictions on the Chairman and the rights and remedies conferred on the Company shall under this Agreement. The Chairman further acknowledges and agrees that the same are reasonable in time and territory, are designed to eliminate competition which would otherwise be unfair to the Company, do not stifle the Chairman's inherent skill and experience, would not operate as a bar to the Chairman's sole means of support, are fully required to continue to pay protect the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery legitimate interests of the Noncompetition Notice, (ii) Company and do not confer a benefit upon the Company shall be required disproportionate to pay in a lump sum the ExecutiveChairman's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Noticedetriment.
(f) If, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of enforcement of this Section 3.2, a court holds that the restrictions stated in this Section 3.2 are unreasonable under circumstances then existing, the Chairman and the Company agree that the maximum period, scope or geographical area reasonable under such termination of employment circumstances will be substituted for the Restricted Periodstated period, scope or area and that the court will be allowed to revise the restrictions contained in this Section 3.2 to cover the maximum period, scope and area permitted by law.
(ivg) Nothing in this Section 3.2 will be deemed to limit or otherwise affect any noncompetition or nonsolicitation or other similar covenant or obligation imposed on the Company shall continue to provide Chairman under any other agreement with, or plan or arrangement of, the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of BermudaCompany.
Appears in 1 contract
Samples: Retirement Agreement (Timken Co)
Noncompetition. The Employee agrees that during the term of this Agreement and any extension thereof, and for a period of two (2) years after his employment ceases, the Employee shall not, unless acting pursuant hereto or with the prior written consent of the Board of Directors of the Company, directly or indirectly:
(a) The Executive acknowledges that during his employment with the Companysolicit business from or perform services for, he hasany person, and will continue to, become familiar with trade secrets and company or other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that entity which at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice Employee's employment by the Company to the Executive, for is a period ending twelve (12) months after the termination client or customer of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination Company if such business or services are of the Executive's 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;
(the time described in clauses (ic) and (ii), collectively, the "Restricted Period"), he will not directly or indirectly own, manage, controloperate, finance, join, control or participate inin the ownership, consult withmanagement, render services for operation, financing or in any manner engage in control of, or be connected as an officer, director, employee, partner or principal with any business competing with or enterprise engaged in the business of debt collection or any other business engaged in by the Company or any of its Affiliates as such businesses exist affiliates in all those geographic areas in which the Company or are any of its affiliates does business;
(d) use of permit his name to be used in process as connection with any business or enterprise engaged in the business of debt collection or any other business engaged in by the date Company or any of termination, within any geographical its affiliates in all those geographic area in which the Company or any of its Affiliates engage affiliates does business; or
(e) use the name of the Company or plan any name similar thereto, but nothing in this clause shall be deemed, by implication, to engage authorize or permit use of such name after expiration of the period covered by this paragraph. In the event that any provisions of this paragraph should ever be adjudicated to exceed the time, geographic, service or product limitations permitted by applicable law in any jurisdiction, then such provisions shall be deemed reformed in such businessesjurisdiction to the maximum time, geographic, service or product limitations permitted to applicable law. It shall not be considered a violation of this Section 9.01 for Furthermore, the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) above restrictions shall be of no force or effect unless waived by the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event that the Employee is dismissed as a result of a merger or other business combination by the Company. The foregoing restrictions are not intended in any way to restrict the Employee's ability to resume his professional practice as an attorney or otherwise limit the scope and nature of such practice after his employment by the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermudaceases.
Appears in 1 contract
Samples: Employment Agreement (Nco Group Inc)
Noncompetition. (a) The Executive Seller acknowledges that during his employment with Buyer will be engaged in Facility Activities throughout the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, Territory and that his services will be of special, unique and extraordinary value to protect adequately the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery interest of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted 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 business of the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation Buyer in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless Facilities it is essential that any noncompete covenant with respect thereto cover all Facility Activities and the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")entire Territory.
(b) Subject to Section 12.09The Seller hereby agrees that he shall not, during the Noncompete Period, in any manner (other than as a shareholder and/or an employee of or consultant to Buyer or as otherwise permitted under this Section 10.01), directly or indirectly, own, manage, operate, join, control, or engage or participate in the event ownership, management, operation, or control of any business or organization any part of which engages in the Company provides provision of Facility Activities in the Executive with the Noncompetition NoticeTerritory, including, without limitation, (i) participation as a stockholder, or partner of, or having any direct or indirect financial interest in any enterprise which engages in Facility Activities in the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, Territory and/or (ii) participation as an employees, officer, director, agent, representative, or consultant in, or rendering of any services to, any enterprise in which his responsibilities are related directly and/or indirectly to any Facility Activities in the Company Territory.
(c) The Seller shall be required to pay hold in a lump sum confidence at all times after the Executive's Target Bonus then in effect on date hereof and until the first pay date following the delivery expiration of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Noncompete Period, all Trade Secrets, and (iv) shall not disclose or publish Trade Secrets at any time after the Company shall continue to provide date hereof and until the housing allowance set forth in Section 4.04(e) for the lesser expiration of the Restricted Period Noncompete Period, without the prior written consent of Buyer, provided that nothing contained herein shall prevent or -------- prohibit Seller from using such Trade Secrets for his own account or in the operation of facilities not prohibited by this Agreement. Nothing in this Agreement shall diminish the rights of Buyer regarding the protection of trade secrets and other intellectual property pursuant to applicable law.
(d) The Seller hereby agrees that he shall hold in confidence at all times after the period during date hereof and until the expiration of the Noncompete Period, all Confidential Information and will not disclose or publish Confidential Information without the prior written consent of the Buyer, provided that nothing contained herein shall prevent or prohibit Seller from -------- using such Confidential Information for his own account or in the operation of facilities not prohibited by this Agreement.
(e) Notwithstanding anything in this Section 10.01 to the contrary, nothing contained herein shall prohibit the Seller from owning not more than ten percent (10%) of any company which engages in Facility Activities and whose common stock is publicly traded on a national securities exchange or in the Executive remains a resident of BermudaNASDAQ National Market System.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Centennial Healthcare Corp)
Noncompetition. (a) The Executive acknowledges that during his Until two years after termination of Employee's employment with the Companyhereunder, he has, and Employee will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time not (i) during 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 Employment Period, acquisition and (ii) (x) following a Justified Termination and delivery consolidation of the Noncompetition Notice medical practices which were either conducted by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (at the time described in clauses of Employee's termination or Proposed to be Conducted (ias defined herein) and (ii), collectively, the "Restricted 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 business of by the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination (the Designated Industry), (ii) divert to any competitor of employment for the Restricted Period, and (iv) the 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, provided that if during the term of this Agreement Employee is serving as an officer, director or employee of another entity, the amount of time spent by Employee in connection with such service taken together with the amount of consulting time spent by Employee in accordance with Section 11 shall not exceed 10% of his professional time or two (2) days per month. _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 provide be bound by the housing allowance set forth in provisions of this Section 4.04(e) for 10 until their expiration and will not be entitled to any compensation from the lesser Company with respect thereto. If at any time the provisions of this Section 10 are determined to be invalid or unenforceable, by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 10 will be considered divisible and will become and be immediately amended to only such area, duration and scope of activity as will be determined to be reasonable and enforceable by the Restricted Period court or other body having jurisdiction over the matter; and the period during which the Executive remains a resident of BermudaEmployee agrees that this Section 10 as so amended will be valid and binding as though any invalid or unenforceable provision had not been included herein.
Appears in 1 contract
Samples: Employment Agreement (Physicians Resource Group Inc)
Noncompetition. (a) The Executive acknowledges agrees that during for the duration of his employment with and for a period two (2) years from the Companydate of termination thereof and during any Severance Period, he haswill not, on his own behalf or on behalf of any other person or entity, hire, solicit, or encourage to leave the employ of the Corporation or its subsidiaries, affiliates or licensees any person who is an employee of any of such companies.
(b) The Executive agrees that for the duration of his employment and will continue to, become familiar with trade secrets for a period of two (2) years from the date of termination thereof and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In additionduring any Severance Period, the Executive hereby will take no action which is intended, or would reasonably be expected, to harm (e.g. making public derogatory statements or misusing confidential Corporation information, it being acknowledged that the Executive's employment with a competitor in and of itself shall not be deemed to be harmful to the Corporation for purposes of this Section 8(b)) the Corporation or any of its subsidiaries, affiliates or licensees or their reputation.
(c) The Executive agrees that at any time during the duration of his employment and;
(i) during in the Employment Periodevent of the Executive's termination of employment due to the Executive's resignation without Good Reason, until the later of (x) three (3) years from the date of this Agreement and (y) twelve
(ii) (x) following a Justified Termination and delivery in the event of the Noncompetition Notice Executive's termination of employment by the Company to Corporation without Cause or the Executive's resignation for Good Reason pursuant to Section 5(b), for a period ending twelve (12) months after from the date of such termination of employment; and
(iii) in the event of the Executive's termination of employment by the Corporation for Cause, at the election of the Corporation in consideration for the payment to the Executive of an amount equal to one twelfth (1/12) the Executive's Salary and Annual Incentive Bonus (yequal to the average of the Annual Incentive Bonuses paid to the Executive over the preceding two years) following an Unjustified Terminationfor each month within such period, for a period ending of up to twelve (12) months after from the date of such termination of employment, then, during the Executive's employment (the time described period specified in clauses clause (i) and ), (ii)) or (iii) above, collectivelyas applicable, the Executive shall not, directly or indirectly, (A) engage in any "Restricted Period")Competitive Business" (as defined below) for his own account, he will not (B) enter into the employ of, or render any services to, any person engaged in a Competitive Business, or (C) become interested in any entity engaged in a Competitive Business, directly or indirectly ownas an individual, managepartner, controlshareholder, participate inofficer, consult withdirector, render services for principal, agent, employee, trustee, consultant, or in any manner engage in any business competing with the business of the Company other relationship or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It capacity; provided that nothing shall not be considered a violation of this Section 9.01 for prevent the Executive to be from providing legal services in private practice; provided, further, that the Executive may own, solely as an investment, securities of any entity which are traded on a passive owner national securities exchange if the Executive is not a controlling person of, or a member of not more than a group that controls such entity and does not, directly or indirectly, own 2% of the outstanding stock or more of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business securities of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")entity.
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 1 contract
Noncompetition. For a period of five (a5) The Executive acknowledges that during his employment with years after the Companydate of this Agreement (the “Restricted Period”), he hasSeller shall not, and will continue Seller shall cause its Subsidiaries not to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted Period"), he will not directly or indirectly indirectly, own, manage, control, participate operate or engage in, consult with, render services for or in any manner manner, any aspect of the Divested Business anywhere in the United States or serve as a distributor, dealer, reseller or sales representative with respect to carry deck cranes or boom trucks, in each case, with a capacity of 20 tons or less (collectively, the “Divested Competitive Business”) including owning any security in any entity engaged in the Divested Competitive Business; provided, however, that, the foregoing shall not prohibit the ownership of less than 5.0% of the securities of any corporation or other entity that is listed 27861141 4846-3647-0232.10 on a national securities exchange. Notwithstanding the foregoing, nothing in this Section 1 shall prohibit the Seller or its Subsidiaries from (a) acquiring for purposes of leasing, leasing, and then disposing of such previously leased, carry deck cranes and boom trucks, in each case, with a capacity of 20 tons or less, so long as neither Seller nor any of its Subsidiaries serve as a distributor, dealer, reseller or sales representative with respect thereto (the “Specified Permitted Divested Business”), (b) continuing to engage in any its business competing with (other than a Divested Competitive Business) as conducted prior to the business date hereof, or (c) directly or indirectly (x) acquiring an entity that operates a Divested Competitive Business so long as such entity has not, on average over the past three years (determined based on the three most recent available annual financial statements of such entity), derived more than 25% of its annual gross revenue from operating the Divested Competitive Business (the “Seller After Acquired Business”) and (y) operating and disposing of the Company Divested Competitive Business of the Seller After Acquired Business; provided that Seller and its Subsidiaries shall dispose or its Affiliates as such businesses exist or are in process as otherwise cease their operation of the Divested Competitive Business (other than the Specified Permitted Divested Business) of the Seller After Acquired Business within eighteen (18) months of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% acquisition of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")Seller After Acquired Business.
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 1 contract
Samples: Asset Purchase Agreement (H&E Equipment Services, Inc.)
Noncompetition. The following noncompetition provisions shall apply to the Txxxx Partner:
(ai) The Executive acknowledges that Txxxx Partner shall not, at any time during his employment with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning Company or the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after month period commencing on the termination day immediately following the date (the “Termination Date”) on which his employment with the Company terminates for any reason, without the consent of the Executive's employment and (y) following an Unjustified TerminationBoard of Directors, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted Period"), he will not directly or indirectly own, manage, control, participate in, consult with, render services for or in any manner engage in any activity that the Board, in the exercise of its reasonable business competing 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 Txxxx Partner shall promptly notify the Board (or its representative) in advance in writing (which shall include a description of the activity) of his intention to engage in any activity which could reasonably be deemed to be subject to this noncompetition provision, and the Board shall respond to the Txxxx Partner in writing within 4 business days indicating its approval or objections to the Txxxx Partner’s engagement in the activity; provided, however, that if the Board (or its representative) does not respond to or request additional information from the Txxxx Partner within such four (4) business day period the Board’s approval shall be deemed to be granted. If the Txxxx Partner fails to notify the Board of his intended activity in advance, the Board shall retain all its rights of objections. Notwithstanding the preceding provisions of this subsection (a)(i), this subsection (a)(i) shall not be construed as preventing the Txxxx Partner from investing his personal assets in any business that competes with the Company, in such form or manner as will not require any services on the part of the Txxxx Partner in the operation of the affairs of the business in which such investments are made, but only if the Txxxx Partner 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) During the twenty-four (24) month period commencing on the day immediately following the Termination Date, the Txxxx Partner shall not (A) influence or attempt to influence any person, firm, association, partnership, corporation, or other entity that is a contracting party with the Company to terminate any written agreement with the Company, except to the extent the Txxxx Partner is acting on behalf of the 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 Txxxx Partner is acting on behalf of the Company in good faith; provided, however, that nothing herein shall prohibit the Txxxx Partner from generally advertising for personnel not specifically targeting any executive or other personnel of the Company.
(iii) During the term of this agreement and for the twenty-four (24) month period immediately thereafter, the Txxxx Partner shall not publicly criticize or disparage the Company, any subsidiary or affiliate of the Company, or any director, officer, executive, or agent of the Company or its Affiliates as such businesses exist any subsidiary or are in process as affiliate of the date of terminationCompany, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not except as may be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")required by law.
(biv) Subject to Section 12.09During the term of this agreement and for the twenty-four (24) month period immediately thereafter, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay not issue any defamatory statements about the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of BermudaTxxxx Partner.
Appears in 1 contract
Samples: Interim Executive Services Agreement (Bally Total Fitness Holding Corp)
Noncompetition. (a) The Executive acknowledges that during his employment From and after the date hereof, Seller will refrain from, either alone or in conjunction with any other Person, or directly or indirectly through its present or future Affiliates:
(i) causing or attempting to cause any client, customer or supplier of the Company or the Subsidiaries to terminate or materially reduce its business with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and Subsidiaries or any of their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and Affiliates; or
(ii) disclosing (unless compelled by judicial or administrative process) or using any Trade Secrets relating to the Business of the Company or the Subsidiaries in a manner adverse to the Company or any Subsidiary.
(b) For a period of two years after the Closing Date, Seller will refrain from, either alone or in conjunction with any other Person, or directly or indirectly through its present or future Affiliates, participating or engaging in the Restricted Business in California; provided, however, that, for the purposes of this Section 8.7, (x) following a Justified Termination and delivery ownership of securities having no more than 5% of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination outstanding voting power of the Executive's employment any Person whose capital stock or equity is listed on any national or international securities exchange or quotation system and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination ownership of the Executive's employment (the time described not more than 10% of any private equity fund or alternative investment vehicle in clauses (i) and (ii), collectively, the "Restricted 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 business of the Company which Aon or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It is a passive investor shall not be considered deemed to be a violation of this Section 9.01 for 8.7.
(c) Notwithstanding the Executive provisions of this Section 8.7 and without implicitly agreeing that the following activities would be subject to be the provisions of Section 8.7(b), nothing in this Agreement or in the Seller Ancillary Agreements shall preclude, prohibit or restrict Aon or any of its Affiliates from: (i) engaging in or owning an interest in any entity that engages in any Exempt Business Activities; (ii) acquiring, and following such acquisition, actively engaging in any business that has a passive owner of not more than 2% of the outstanding stock of subsidiary, division, group, franchise or segment that is engaged in any class of a corporation which is publicly tradedRestricted Business (an “Acquired Business”), so long as for the Executive has no active participation in most recent fiscal year ending prior to the business date of such corporation. The terms purchase, the revenues of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later such business derived from a Restricted Business were less than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery 25% of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery total consolidated revenues of the Noncompetition Notice, such business; or (iii) engaging in an Aon Change of Control or, if the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans acquiring Person has a subsidiary, division, group, franchise or segment that is engaged in effect a Restricted Business at the time of such termination the Aon Change of employment for Control, thereafter engaging in the Restricted Period, Business.
(d) The parties hereto recognize that the Laws and (iv) public policies of the Company shall continue various states of the United States may differ as to provide the housing allowance validity and enforceability of covenants similar to those set forth in this Section 4.04(e) for 8.7. It is the lesser intention of the Restricted Period parties that the provisions of this Section 8.7 be enforced to the fullest extent permissible under the Laws and policies of each jurisdiction in which enforcement may be sought, and that the period during unenforceability (or the modification to conform to such Laws or policies) of any provisions of this Section 8.7 shall not render unenforceable, or impair, the remainder of the provisions of this Section 8.7. Accordingly, if any provision of this Section 8.7 shall be determined to be invalid or unenforceable, such invalidity or unenforceability shall be deemed to apply only with respect to the operation of such provision in the particular jurisdiction in which such determination is made and not with respect to any other provision or jurisdiction.
(e) The parties hereto acknowledge and agree that any remedy at Law for any breach of the Executive remains a resident provisions of Bermudathis Section 8.7 would be inadequate, and Seller hereby consents to the granting by any court of an injunction or other equitable relief to Buyer, without the necessity of actual monetary loss being proved, in order that the breach or threatened breach of such provisions may be effectively restrained.
Appears in 1 contract
Noncompetition. (a) The Executive acknowledges As an inducement for Buyer to enter into this Agreement, Seller and Parent agree that during his employment with the Company, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after of three years following the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment Closing Date (the time described in clauses (i) and (ii), collectively, the "Restricted Non-Competition Period"), he will not neither of them (nor any division or subsidiary of Parent) shall directly or indirectly own, manage, controloperate, assist, join, control or participate inin the ownership, consult management, operation or control of, or be connected as a partner, consultant or otherwise with, render services for any third party that directly or in any manner engage in any business competing with indirectly competes with, or is about to compete with, the business of the Company or its Affiliates and the Subsidiaries as such businesses it shall exist or are in process as of on the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businessesClosing Date. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in In recognition that the business of such corporationthe Company and the Subsidiaries is currently conducted throughout the world, the restrictions set forth in the foregoing sentence shall have no geographic limits. The terms of Section 9.01(a)(ii)(xIn the event the restrictions set forth in this subsection (5.12) shall be determined by any court of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination competent jurisdiction to be unenforceable by reason of its intention extending over too great a period of time or over too great a geographical area or by reason of its being too extensive in any other respect, it shall be interpreted to enforce extend only over the provisions maximum period of Section 9.01(a)(ii)(xtime for which it may be enforceable and/or over the maximum geographical area as to which it may be enforceable and/or to the maximum extent in all other respects as to which it may be enforceable, all as determined by such court in such action. Nothing contained in this subsection (5.12) (shall restrict Seller, Parent or Parent's pension plan from owning 5% or less of the "Noncompetition Notice").
(b) Subject corporate securities of any third party which securities are listed on any national securities exchange or authorized for quotation on the Automated Quotation System of the National Association of Securities Dealers, Inc., if none of them has any other connection or relationship, direct or indirect, with such third party, nor 57 prevent Parent or any division or subsidiary of Parent from conducting their business as currently being conducted. Pre- and Post-Closing Cooperation. --------------------------------- Prior to, at and, at Buyer's sole out-of-pocket cost and expense, for a reasonable period subsequent to Section 12.09the Closing, Seller and Parent shall cooperate with Buyer in the event the Company provides the Executive connection with the Noncompetition Notice, (i) the Company shall be required initiation by Buyer of administrative, legal and management functions previously provided by Seller, Parent or their affiliates with respect to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery businesses of the Noncompetition NoticeCompany and the Subsidiaries, (ii) the Company shall be required efforts by Buyer to pay in a lump sum complete its financing with respect to this transaction (including the Executiveprovision of information and access to Parent's Target Bonus then in effect on accountants and auditors and the first pay date following the delivery reasonable assistance of management of the Noncompetition NoticeCompany and the Subsidiaries), (iii) the Executive shall continue to receive major medical insurance coverage benefits from making of future filings with the Company's plans Securities and Exchange Commission, including the assistance and cooperation of Parent and its auditors in effect at the time preparation of financial statements for such termination filings and the provision of employment for the Restricted Period, any necessary consents in connection therewith and (iv) Buyer's handling following the Closing of any liabilities and obligations of the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during Subsidiaries with respect to which Seller has no responsibility pursuant to Section 8.1 or otherwise. Such cooperation shall include, but not be limited to, the Executive remains a resident provision by Seller and Parent of Bermudaany documents (or copies thereof) reasonably requested by Buyer.
Appears in 1 contract
Samples: Stock Purchase Agreement (Armstrong World Industries Inc)
Noncompetition. (a) The Executive acknowledges that during his her employment with the Company, he she has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his her services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted Period"), he she 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 business of the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area in which the Company or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 1 contract
Noncompetition. During the Restricted Period (as defined below) the Executive will not, without the Company’s prior written consent (which consent shall not be unreasonably withheld), directly or indirectly, for the Executive’s own account or for or on behalf of any other person or entity, whether an officer, director, employee, partner, consultant, or otherwise:
(a) The Executive acknowledges engage or participate in, directly or indirectly, alone or as principal, agent, employee, employer, consultant, investor or partner of, or assist in the management of, or provide advisory or other services to, or own any stock or any other ownership interest in, or make any financial investment in, any business or entity which is Competitive with the Company (as defined below) or purchase any property which could reasonably be used to provide or develop a business that during his employment is Competitive with the Company; or
(b) solicit or attempt to hire or employ, he hasin any fashion (whether as an employee, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (iiindependent contractor or otherwise), collectively, the "Restricted Period"), he will not directly any employee or indirectly own, manage, control, participate in, consult with, render services for or in any manner engage in any business competing with the business independent contractor of the Company or its Affiliates as such businesses exist the Subsidiaries, or are in process as solicit or induce, or attempt to solicit or induce, any of the date of terminationCompany’s or the Subsidiaries’ employees, within any geographical area in which consultants, clients, customers, vendors, suppliers or independent contractors to terminate their relationship with the Company and/or the Subsidiaries; or its Affiliates engage or plan to engage in such businesses. It shall not be considered a violation For purposes of this Section 9.01 for the Executive to be a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice").Agreement:
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) With respect to subparagraph 9(a) above, the Company shall be required to continue to pay the Executive the Base Salary for the “Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and ” means the period during which the Executive remains is employed by the Company and, if the Executive’s Date of Termination occurs prior to December 31, 2007 other than on account of termination by the Company for reasons other than Cause, the period following the Executive’s Date of Termination and ending on December 31, 2007.
(ii) With respect to subparagraph 9(b) above, the “Restricted Period” means the period during which the Executive is employed by the Company and, if the Executive’s Date of Termination occurs prior to December 31, 2008, the period following the Executive’s Date of Termination and ending on December 31, 2008.
(iii) A business or entity shall be considered “Competitive with the Company” if it engages in any of the businesses in which the Company or any of its affiliates engages, including the business of providing distribution facilities or services, the acquisitions of properties for such purpose and the design of business strategies for such purpose. For purposes of the portion of the Restricted Period following the Executive’s Date of Termination, the businesses in which the Company or any of its affiliates engages shall be determined as of the Executive’s Date of Termination.
(iv) For periods after the Executive’s Date of Termination, a resident business entity shall not be considered “Competitive with the Company” (as defined in clause (iii) above) for purposes of Bermudathis Agreement if it builds anything other than industrial warehouses or acquires property for purposes of developing anything other than industrial warehouses and the Executive’s investment in such business or entity does not exceed $10,000,000 with respect to any one transaction or $20,000,000 in the aggregate for all transactions for the portion of the Restricted Period following his Date of Termination.
Appears in 1 contract
Samples: Employment Agreement (Prologis)
Noncompetition. (a) The Executive acknowledges agrees that during he will not engage in Competition (as defined below) while he is employed by the Company. In the event that the Executive engages in Competition within the five-year period immediately following the termination of his employment with the CompanyCompany for any reason, he has, and will continue to, become familiar with trade secrets and other Confidential Information concerning the Company and its Affiliates and their respective predecessors, and that his services will be of special, unique and extraordinary value to the Company. In addition, the Executive hereby agrees that at any time (i) during his Initial Option shall be immediately forfeited to the Employment Period, extent not previously exercised and (ii) he shall forfeit (x) following a Justified Termination and delivery or, in the case of the Noncompetition Notice by the Company prior payment to the Executive, for a period ending twelve (12shall repay together with interest at the "applicable federal rate", determined in accordance with Section 1274(d) months after the termination of the Executive's Internal Revenue Code or any successor provision thereto) a pro rata portion of the severance payment provided for in Section 5(c)(i). Such pro rata portion shall be based upon (x) the number of days remaining between the first day on which the Executive engages in Competition and the fifth anniversary of his last day of employment and by the Company, divided by (y) 1826. The Company's sole remedy for the breach of this Section following an Unjustified Termination, for a period ending twelve (12) months after the his termination of employment shall be as set forth in the Executive's employment (the time described preceding two sentences. The Executive shall be deemed to be engaging in clauses (i) and (ii), collectively, the "Restricted Period"), Competition" if he will not directly or indirectly ownindirectly, manageowns, controlmanages, participate operates, controls or participates in the ownership, management, operation or control of or is connected as an officer, employee, partner, director, consultant or otherwise with, or has any financial interest in, consult with, render any business engaged in the financial services for or business (a "Competing Business") in any manner engage in any business competing with the business of the Company or its Affiliates as such businesses exist or are in process as of the date of termination, within any geographical area state in which the Company or its Affiliates engage subsidiaries or plan to engage affiliates now or hereafter operate a commercial banking or other material financial services business which is a material part of such business and is in such businessesmaterial competition with the business conducted by the Company at the time of the termination of his employment with the Company or its subsidiaries or affiliates. It Notwithstanding the foregoing sentence, the Executive shall not be considered deemed to be engaging in Competition under the circumstances described in the foregoing sentence if the Executive (i) does not own or control the Competing Business, (ii) does not serve as a violation of this Section 9.01 director or a consultant to the Competing Business, and (iii) does not have any management or operational responsibility for the Executive to be a passive owner Competing Business in any such state. Ownership for personal investment purposes only of not more less than 2% of the outstanding voting stock of any class of publicly held corporation shall not constitute a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")violation hereof.
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 1 contract
Noncompetition. (a) The Executive acknowledges recognizes and understands that during in performing the responsibilities of his employment with the Companyemployment, he has, has and will continue toto occupy a position of fiduciary trust and confidence, become familiar pursuant to which he has and will continue to develop and acquire experience and knowledge with trade secrets respect to the Company's business. It is the expressed intent and other Confidential Information concerning agreement of the Executive and the Company that such knowledge and experience shall be used exclusively in the furtherance of the interests of the Company and its Affiliates and their respective predecessors, and that his services will not in any manner which would be of special, unique and extraordinary value detrimental to the Company's interests. In additionThe Executive therefore agrees that so long as he is employed by or receiving compensation from the Company and/or any of the other Lynton Companies, and (i) for a period of one (1) year following the termination of this Agreement if terminated for cause pursuant to Section 6(b) hereof, or (ii) for a period of one (1) year following the expiration of the Term if prior thereto the Company has made a Renewal Offer (as defined below) to the Executive and the Executive has failed to accept the Renewal Offer within thirty (30) days thereof, the Executive hereby agrees that at any time (i) during the Employment Period, and (ii) (x) following a Justified Termination and delivery of the Noncompetition Notice by the Company to the Executive, for a period ending twelve (12) months after the termination of the Executive's employment and (y) following an Unjustified Termination, for a period ending twelve (12) months after the termination of the Executive's employment (the time described in clauses (i) and (ii), collectively, the "Restricted Period"), he will not directly or indirectly ownbe employed by, managework for, control, participate inadvise, consult with, render services for serve or assist in any manner engage in way, directly or indirectly, any party whose business competing is competitive with the activities or business of the Company or its Affiliates as such businesses exist or are in process as any of the date other Lynton Companies within the States of terminationConnecticut, New Jersey, New York or Pennsylvania, anywhere within the United Kingdom, or any geographical area other states or jurisdictions in which the Company or its Affiliates engage any of the other Lynton Companies may then operate or plan transact business. The Executive agrees further that he will not, during the applicable periods referred to engage above, purchase or otherwise acquire, directly or indirectly, any interest of any kind in any such businessesbusiness which is competitive with that of the Company or any of the other Lynton Companies. It The foregoing restrictions on competition by the Executive shall be operative for the benefit of the Company and the other Lynton Companies and of any business owned or controlled by the Company or the other Lynton Companies, or any successor or assign of any of the foregoing. In the event that the provisions of this Section 7 should ever be deemed to exceed the time or geographic limitations permitted by applicable laws, then such provisions shall be reformed to the maximum time or geographic limitations permitted by applicable laws. For purposes hereof, a "Renewal Offer" shall be deemed to have occurred if at least sixty (60) days prior to the expiration of the Term, the Company offers to renew this Agreement on similar terms as provided herein for a minimum period of eighteen (18) months at compensation at least equal to the compensation provided under Section 4(a) hereof. Notwithstanding the foregoing, it is specifically understood that the Company has no obligation to make a Renewal Offer to the Executive.
(b) The parties hereto, recognizing that irreparable injury will result to the Company and the other Lynton Companies, their business and property in the event of the Executive's breach of his covenant herein not to compete, and that such covenant is a material part of the consideration upon which this Agreement is founded, agree that in the event of the Executive's breach of this covenant, the Company and the other Lynton Companies shall be considered entitled, in addition to any other remedies and damages available to them, to an injunction to restrain the violation thereof by the Executive, his partners, agents, servants, employers, employees and all persons acting for or with him. The Executive represents and admits that in the event of the termination of his employment hereunder, the enforcement of a remedy for a violation of this Section 9.01 for the Executive to be 7 by way of injunction will not prevent him from earning a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as the Executive has no active participation in the business of such corporation. The terms of Section 9.01(a)(ii)(x) shall be of no force or effect unless the Company notifies the Executive in writing no later than ten (10) business days following a Justified Termination of its intention to enforce the provisions of Section 9.01(a)(ii)(x) (the "Noncompetition Notice")livelihood.
(b) Subject to Section 12.09, in the event the Company provides the Executive with the Noncompetition Notice, (i) the Company shall be required to continue to pay the Executive the Base Salary for the Restricted Period, paid in accordance with the Company's regular pay practices, starting with the first pay date following delivery of the Noncompetition Notice, (ii) the Company shall be required to pay in a lump sum the Executive's Target Bonus then in effect on the first pay date following the delivery of the Noncompetition Notice, (iii) the Executive shall continue to receive major medical insurance coverage benefits from the Company's plans in effect at the time of such termination of employment for the Restricted Period, and (iv) the Company shall continue to provide the housing allowance set forth in Section 4.04(e) for the lesser of the Restricted Period and the period during which the Executive remains a resident of Bermuda.
Appears in 1 contract
