Restrictive Covenants. 5.1 Executive acknowledges that (i) he has a major responsibility for the operation, administration, development and growth of the Company's business, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows: 5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of this Agreement (the "Termination Period"), Executive shall not, directly or indirectly, compete with respect to any services or products of the Company which are either offered or are being developed by the Company; or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Company; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America. 5.1.2 During the Term of this Agreement and during the Termination Period, Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business. 5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement. 5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information. 5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity. 5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants. 5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity. 5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable. 5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 5 contracts
Samples: Employment Agreement (Gateway International Holdings Inc), Employment Agreement (Gateway International Holdings Inc), Employment Agreement (Gateway International Holdings Inc)
Restrictive Covenants. 5.1 Executive acknowledges that (i) he has a major responsibility for the operation, administration, development and growth of the Company's business, (ii) the Company's business is or may become national or international in scope, (iii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iiiiv) the agreements and covenants contained in this Section 5 5.1 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 (a) Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of and, if this Agreement is terminated for any reason during the Term, for two (2) years following such date of termination (the "Termination Period"), the Executive shall not, directly or indirectly, compete with respect to any services or products of the Company which are either offered or are being developed by the CompanyCompany as of the date of termination; or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executiveExecutive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the CompanyCompany as of the data of termination; provided, however, that the Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America, and may retain his ownership interest in those entities referred to in Section 4.1 above.
5.1.2 (b) During the Term term of this Agreement and and, if applicable, during the Termination Period, the Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee executive of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve one (121) month year period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 (c) During the Term of this Agreement, the Termination Period, if applicable, and thereafter, the Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall the Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If the Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 (a) The Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by the Executive or any person or business entity controlled by the Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 (b) Notwithstanding the provisions of subsection 5.2.1 5.2(a) above, the Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 55.1, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 4 contracts
Samples: Employment Agreement (Hi Shear Technology Corp), Employment Agreement (Hi Shear Technology Corp), Employment Agreement (Hi Shear Technology Corp)
Restrictive Covenants. 5.1 Executive Employee acknowledges that (i) he has that, as a major responsibility for the operation, administration, development and growth result of Employee’s service with the Company's business, (ii) his work for the Company has brought him a special relationship of trust and confidence will continue to bring him into close contact with confidential information of develop between Employee, the Company and its clients and customers, and (iii) the agreements and covenants contained in that this Section 5 are essential to protect the business interest relationship will generate a substantial amount of good will between the Company and its clients and customers. Employee further acknowledges and agrees that it is fair and reasonable for the Company to take steps to protect it from the loss of its Confidential Information or its customer goodwill. Employee further acknowledges that throughout his service with the Company, Employee will not enter into this Agreement but for such agreements be provided with access to and covenantsinformed of confidential, proprietary and highly sensitive information relating to the Company’s clients and customers, which is a competitive asset of the Company, and which enables Employee to benefit from the goodwill and know-how of the Company. AccordinglyTherefore, as a material condition to the Executive covenants and Company’s willingness to perform its obligations hereunder, Employee agrees as follows:
5.1.1 Except as otherwise provided for in this Agreementthat, during the Term of this Agreement and for a period of twelve (12) months following the date of the termination of this Agreement employment by the Company for any reason (the "Termination Period"except as specifically set forth below), Executive shall Employee will not, either for himself or in conjunction with others:
(i) compete or engage anywhere in the geographic area comprised of any Metropolitan Statistical Area, as defined by the US Office of Management & Budget, in which Employee has performed duties on behalf of the Company during the preceding twelve (12) months, whether such duties were performed in person, telephonically, electronically or otherwise (“Market Area”), in any business that is the same or similar, or offers competing products and services as those offered by the Company;
(ii) take any action to invest in, own, manage, operate, control, participate in, be employed or engaged by, or be connected in any manner with any partnership, corporation or other business or entity engaging in a business the same or similar, or which offers competing products and services as those offered by the Company anywhere within the Market Area; notwithstanding the foregoing, Employee is permitted hereunder to own, directly or indirectly, compete with respect up to any services or products of the Company which are either offered or are being developed by the Company; or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Company; provided, however, that Executive may own, solely as an investment, not more than one five percent (15%) of any class of the issued and outstanding securities of any publicly held corporation traded financial institution conducting business within the Market Area;
(iii) solicit, divert, take away, do business with, or provide information about, or attempt to solicit, divert, take away or do business with in competition any fashion any of the Company’s customers, clients, business or patrons about whom Employee has Confidential Information, or with whom Employee has done business or attempted to do business on behalf of the Company;
(i) offer employment to, enter into a contract for the employment of, or attempt to entice away from the Company, any individual who is at the time of such offer or attempt, or has been during the twelve months prior to such offer or attempt, an employee of the Company, (ii) interfere with the Company whose securities are traded on material business relationships of the Company, or entice away any national securities exchange in material suppliers or contractors, (iii) procure or facilitate the United States making of America.
5.1.2 During the Term of this Agreement and during the Termination Periodany such offer or attempt by any other person, Executive shall notor (iv) solicit, directly or indirectlythrough any other person, any investor of the Company for purposes of facilitating any investment, partnership or business opportunity unrelated to the Company. The restriction in subsection (iv) above shall not apply to any investor with which the Employee had a preexisting relationship prior to becoming employed by the Company.
(v) (i) induce enter into employment, consultancy, association or attempt to influence affiliation with any entity that provides Conflicting Services (as defined below) if any former employee of the Company to leave its employ, (ii) aid with whom Employee had contact as part of his or agree to aid any competitor, customer or supplier of her duties with the Company in any attempt to hire any person who shall have been (a “Covered Person”) has become employed by the Company within by, associated or affiliated with, or a consultant of such entity during the twelve (12) month period preceding such requested aidEmployee’s termination of employment with the Company; or (ii) continue employment, consultancy, association or affiliation with any entity that provides Conflicting Services if any Covered Person becomes employed by, associated or affiliated with, or a consultant to such entity during the twelve (iii12) induce or attempt month period subsequent to influence any person or business entity who was a customer or supplier Employee’s termination of the Company during any portion of said period to transact business employment with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it It is the intention of the parties hereto that such determination not bar or in any way affect to prevent the Company's right irreparable harm to the relief Company that would occur from the pooling of information that two or more former Covered Persons can provide to a competing entity or the misuse of Confidential Information. As used herein, “Conflicting Services” is defined as services that are the same or substantially similar to those services of Company or its affiliates and subsidiaries (x) which were provided above by Employee (directly or indirectly) during the twelve (12) months preceding Employee’s termination from employment by Company or (y) about which Employee acquired Confidential Information during Employee’s employment by Company. Notwithstanding anything to the contrary contained herein, the foregoing restrictions in Section (b) this Restrictive Covenants Agreement shall not apply in the courts event Employee is terminated by the Company without Cause (as defined in the Award Agreements) during the first twelve (12) months following Employee’s execution of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenantsAward Agreements.
Appears in 4 contracts
Samples: Performance Restricted Stock Unit Award Agreement (Triumph Financial, Inc.), Performance Restricted Stock Unit Award Agreement (Triumph Financial, Inc.), Nonqualified Stock Option Agreement (Triumph Financial, Inc.)
Restrictive Covenants. 5.1 (a) Executive acknowledges and agrees that the restrictive covenants and other post-termination obligations set forth in the RCA, including without limitation Executive’s obligations relating to confidentiality, non-use and non-disclosure of Confidential Information (ias defined in the RCA), non-solicitation, cooperation, and return of property, are hereby incorporated by reference and shall remain in full force and effect pursuant to their terms to the maximum extent permitted by applicable law, except that the parties expressly agree to modify the RCA by removing Section 6, and each subpart thereto, of the RCA, which shall be of no further force or effect upon the Effective Date (as defined below). Executive represents and warrants that Executive has complied with all provisions of the RCA at all times through the Effective Date.
(b) he has a major responsibility In consideration for the operation, administration, development severance payments and growth benefits set forth in Section 1 of the Company's business, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and Executive agrees for a period of twelve (12) 12 months following after the termination of this Agreement Effective Date (the "Termination “Noncompetition Restricted Period"), Executive shall not, ”) to not directly or indirectly, compete with respect to on Executive’s own behalf or for the benefit of any services other individual or products entity: (i) operate, conduct, engage in, or own (except as a holder of not more than three percent (3%) of the Company which are either offered stock of a publicly held company), or are prepare to operate, conduct, engage in, or own any business that develops, markets, distributes, plans, sells or otherwise provides, or is preparing to develop, market, distribute, plan, sell or otherwise provide, any product or service that is in competition with any of the products or services being developed developed, marketed, distributed, planned, sold or otherwise provided by the Company; or, without limiting Company or its affiliates at the generality of the foregoing, be or becometime of, or agree to be during the 12 months preceding, Executive’s termination from the Company (a “Competing Business”) or become(ii) participate in, interested render services to, or assist any individual or entity that engages in or associated with, a Competing Business in any capacity (whether as a partneran employee, shareholdermanager, ownerconsultant, director, officer, directorcontractor, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture (A) which involve the same or other business entity, which competes with respect to any similar types of services or products of Executive performed for the Company which are either offered or are being developed by at any time during the Company; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) last two years of any class of securities of any publicly held corporation in competition Executive’s employment with the Company whose securities are traded on or (B) in which Executive could reasonably be expected to use or disclose Confidential Information, in each case (i) and (ii) limited to each city, county, state, territory and country in which (x) Executive provided services or had a material presence or influence at any national securities exchange time during Executive’s last two years of employment with the Company or (y) the Company is engaged in or has plans to engage in the United States Competing Business as of Americathe Effective Date. Without limiting the Company’s ability to seek other remedies available in law or equity, if Executive violates this Section 4(b), the Noncompetition Restricted Period shall be extended by one day for each day that Executive is in violation of such provisions, up to a maximum extension equal to the length of the Noncompetition Restricted Period, so as to give the Company the full benefit of the bargained-for length of forbearance.
5.1.2 During (c) Executive’s continued compliance with the Term terms of the RCA (as modified in Section 4(a) above) and the noncompetition obligations set forth in Section 4(b) above (collectively, the “Restrictive Covenants”) is a material condition to receipt of the severance payments and benefits set forth in Section 1 of this Agreement. In the event Executive breaches any part of such Restrictive Covenants, then, in addition to any remedies and enforcement mechanisms set forth in the RCA and this Agreement and during the Termination Period, Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 (including equitable and injunctive remedies), Executive shall account for forfeit any additional consideration owing and pay over shall be obligated to promptly return to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or (within two (2) business entity controlled by Executive resulting from any action or transactions constituting a breach days of any breach) the full gross amount of all severance payments and benefits provided.
(d) If any provision of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company Covenants shall have no adequate remedy at law and shall therefore be entitled determined to enforce each such provision be unenforceable by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity or arbitrator by reason of proving damagesits extending for too great a period of time or over too large a geographic area or over too great a range of activities, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which it shall be given full effectinterpreted to extend only over the maximum period of time, without regard geographic area or range of activities as to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then which it may be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 4 contracts
Samples: Employment Agreement (Selecta Biosciences Inc), Employment Agreement (Selecta Biosciences Inc), Employment Agreement (Selecta Biosciences Inc)
Restrictive Covenants. 5.1 Executive acknowledges that (i) he has a major responsibility for the operation, administration, development and growth of the Company's business, (ii) his work for SECTION 4.01. As an inducement to the Company has brought him to provide the payments and will continue benefits to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. AccordinglyExecutive hereunder, the Executive covenants acknowledges and agrees as follows:
5.1.1 Except that, except as otherwise provided in Section 4.07, in the event of the Executive’s termination of employment for any reason, the Executive agrees to comply with the restrictions set forth in this Agreement, during the Term of this Agreement and Section 4.02 for a period of twelve (12) months following term measured in years and fractions thereof equal to the termination of this Agreement Executive’s Severance Multiple (the "Termination Period"“Non-Compete Term”), provided that if the Executive’s employment is not terminated by reason of a Qualifying Termination (and therefore is not entitled to receive the payments and benefits set forth in Section 2.01 hereof), then the Executive need not comply with the restrictions set forth in Section 4.02.
SECTION 4.02. The Executive acknowledges and agrees that, except as otherwise provided in Section 4.07, so long as the Company complies with its obligations to provide the payments required under Section 2.01, the Executive shall not, directly or indirectly, compete with respect to any services or products of the Company which are either offered or are being developed by the Company; or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested : (a) engage in or associated with, have any interest in any capacity sole proprietorship, partnership, corporation or business or any other person or entity (whether as a partner, shareholder, owneran employee, officer, director, executive, principalpartner, agent, security holder, creditor, trustee, consultant, co-venturer consultant or otherwise) that directly or indirectly (or through any affiliated entity) engages in competition with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by during the CompanyNon-Compete Term; provided, however, that Executive may ownsuch provision shall not apply to the Executive’s ownership of common stock of the Company or the acquisition by the Executive, solely as an investment, of securities of any issuer that is registered under Section 12(b) or 12(g) of the Exchange Act, and that are listed or admitted for trading on any United States national securities exchange or that are quoted on the National Association of Securities Dealers Automated Quotations System, or any similar system or automated dissemination of quotations of securities prices in common use, so long as the Executive does not control, acquire a controlling interest in or become a member of a group which exercises direct or indirect control of, more than one five percent (1%) of any class of securities capital stock of such corporation; or (b) for himself or for any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and during the Termination Periodother person, Executive shall notfirm, directly corporation, partnership, association or indirectly, other entity: (i) induce employ or attempt to influence employ or enter into any contractual arrangement with any employee or former employee of the Company to leave its employCompany, (ii) aid unless such employee or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have former employee has not been employed by the Company within for a period in excess of six months; (ii) call on or solicit any of the twelve (12) month period preceding such requested aid, actual or targeted prospective clients of the Company on behalf of any person or entity in connection with any business competitive with the business of the Company; or (iii) induce make known the names and addresses of such clients or attempt any information relating in any manner to influence the Company’s trade or business relationships with such customers.
SECTION 4.03. The Executive acknowledges and agrees (whether or not the Executive is subject to the restrictions set forth in Section 4.02) not to disclose, either while in the Company’s employ or at any time thereafter, to any person not employed by the Company, or business entity who was a customer or supplier of not engaged to render services to the Company during Company, any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than confidential information obtained by him while in the performance of his duties disclose to anyone any information about the affairs employ of the Company, including, without limitation, any of the Company’s inventions, processes, methods of distribution or customers or trade secrets; provided, trade "know-how"however, inventionsthat this provision shall not preclude the Executive from disclosing information (a) known generally to the public or (b) not considered confidential by persons engaged in the business conducted by the Company or (c) to the extent required by law or court order. The Executive also agrees that upon leaving the Company’s employ he will not take with him, customer listswithout the prior written consent of an officer authorized to act in the matter by the Board any drawing, business plansblueprint, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits specification or other financial informationdocument of the Company, its subsidiaries, affiliates and divisions, which is of a confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse nature relating to the Company's interests. Executive shall not deliver, reproduce its subsidiaries, affiliates, and divisions, including, without limitation, relating to its or in their methods of distribution, or any way allow such documents description of any formulae or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary informationprocesses.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, SECTION 4.04. The Executive acknowledges and agrees that (a) the restrictive covenants contained in this Article IV are reasonably necessary to protect the event legitimate business interests of a violation the Company, and are not overbroad, overlong, or threatened violation unfair and are not the result of overreaching, duress or coercion of any kind, (b) his full, uninhibited and faithful observance of each of the covenants contained in this Article IV will not cause him any undue hardship, financial or otherwise, and that enforcement of each of the covenants contained herein will not impair his ability to obtain employment commensurate with his abilities and on terms fully acceptable to him or otherwise to obtain income required for the comfortable support of him and his family and the satisfaction of the needs of his creditors and (c) the restrictions contained in this Article IV are intended to be, and shall be, for the benefit of and shall be enforceable by, the Company’s successors and permitted assigns.
SECTION 4.05. The Executive acknowledges and agrees that any violation of the provisions of Section 5Article IV would cause the Company irreparable damage and that if the Executive breaches or threatens to breach such provisions, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained entitled, in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice addition to any other rights and remedies which the Company may be available have at law or in equity, to obtain specific performance of such covenants through injunction or other equitable relief from a court of competent jurisdiction, without proof of actual damages and without being required to post bond.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive CovenantsSECTION 4.06. In the event that the courts any court of competent jurisdiction shall finally hold that any one or more provision of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar this Agreement (whether in whole or in any way affect part) is void or constitutes an unreasonable restriction against the Company's right Executive, such provision shall not be rendered void but shall be deemed to be modified to the relief provided above minimum extent necessary to make such provision enforceable for the longest duration and the greatest scope as such court may determine constitutes a reasonable restriction under the circumstances.
SECTION 4.07. Notwithstanding anything to the contrary in this Agreement, the courts provisions of Section 4.01 and 4.02 shall not apply to any other jurisdictions within Executive who is a party to an Executive Termination Agreement with the geographical scope of such Restrictive Covenants, Company and who becomes entitled to receive Severance Payments (as to breaches of such covenants defined in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenantsExecutive Termination Agreement) thereunder.
Appears in 3 contracts
Samples: Officer Severance Agreement (Millipore Corp /Ma), Officer Severance Agreement (Millipore Corp /Ma), Officer Severance Agreement (Millipore Corp /Ma)
Restrictive Covenants. 5.1 Executive acknowledges that (i) he has a major responsibility for During the operation, administration, development and growth of the Company's business, (ii) his work for Executive’s employment with the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following thereafter:
(A) the termination of this Agreement (the "Termination Period"), Executive shall not, directly for the Executive or indirectlyany third party, compete become engaged in any business or activity which is directly in competition with respect to any services or products sold by, or any business or activity engaged in by, the Company or any of its affiliates; provided, however, that this provision shall not restrict the Executive from owning or investing in publicly traded securities, so long as the Executive’s aggregate holdings in any company do not exceed 2% of the outstanding equity of such company and such investment is passive;
(B) the Executive shall not solicit any person who was a customer of the Company or any of its affiliates during the period of the Executive’s employment hereunder, or solicit potential customers who are or were identified through leads developed during the course of employment with the Company, or otherwise divert or attempt to divert any existing business of the Company or any of its affiliates; and
(C) the Executive shall not, directly for the Executive or any third party, solicit, induce, recruit or cause another person in the employment of the Company or any of its affiliates to terminate such employee’s employment for the purposes of joining, associating, or becoming employed with any business or activity which are either offered is in competition with any services or are being developed products sold, or any business or activity engaged in, by the Company or any of its affiliates.
5.2 The Executive agrees that he will not, while employed with the Company or at any time thereafter for any reason, in any fashion, form or manner, either directly or indirectly, divulge, disclose or communicate to any person, firm, corporation or other business entity, in any manner whatsoever, any confidential information or trade secrets concerning the business of the Company; or, including, without limiting the generality of the foregoing, be any customer lists or becomeother customer identifying information, the techniques, methods or systems of the Company’s operation or management, any information regarding its financial matters, or agree any other material information concerning the business of the Company, its manner of operation, its plans or other material data. The provisions of this Section 5.2 shall not apply to be (i) information that is public knowledge other than as a result of disclosure by the Executive in breach of this Section 5.2; (ii) information disseminated by the Company to third parties in the ordinary course of business; (iii) information lawfully received by the Executive from a third party who, based upon inquiry by the Executive, is not bound by a confidential relationship to the Company, or become(iv) information disclosed under a requirement of law or as directed by applicable legal authority having jurisdiction over the Executive.
5.3 The Executive agrees that he will not, interested in while employed with the Company or associated withat any time thereafter for any reason, in any capacity (whether as a partnerfashion, shareholderform or manner, owner, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Company; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and during the Termination Period, Executive shall not, directly or indirectly, (i) induce disparage or attempt to influence any employee of criticize the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aidCompany, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs otherwise speak of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers in any negative or customers, sales, profits or other financial information, which is confidential unflattering way to anyone with regard to any matters relating to the Executive’s employment by the Company or is the business or employment practices of the Company. The Company agrees that it will not, in any fashion, form or manner, either directly or indirectly, disparage or criticize the Executive or otherwise speak of the Executive in any negative or unflattering way to anyone with regard to any matters relating to the Executive’s employment with the Company. This Section shall not generally known operate as a bar to (i) statements reasonably necessary to be made in any judicial, administrative or arbitral proceeding, or (ii) internal communications between and among the relevant trade, nor shall Executive make use employees of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered with a "trade secret" for job-related need to know about this Agreement or matters related to the purposes administration of this Agreement.
5.1.4 5.4 The Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees understands that in the event of a violation or threatened violation of any of the provisions provision of Section 5, the Company shall have no adequate remedy the right to (i) seek injunctive relief, in addition to any other existing rights provided in this Agreement or by operation of law, without the requirement of posting bond and (ii) stop making any future payments or providing benefits under this Agreement. The remedies provided in this Section 5.4 shall be in addition to any legal or equitable remedies existing at law or provided for in any other agreement between the Executive and the Company or any of its affiliates, and shall therefore not be entitled to enforce each construed as a limitation upon, or as an alternative or in lieu of, any such provision remedies. If any provisions of Section 5 shall be determined by temporary or permanent injunctive or mandatory relief obtained in any a court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable part by reason of it being too great a period of time or covering too great a geographical area, it shall be in full force and effect as to that period of time or geographical area determined to be reasonable by the breadth court.
5.5 The Executive acknowledges that the provisions of Section 5 shall extend to any business that becomes an affiliate of or successor to the Company or any of its affiliates on account of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or Change in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenantsControl.
Appears in 3 contracts
Samples: Change in Control Agreement (Armstrong World Industries Inc), Change in Control Agreement (Armstrong World Industries Inc), Change in Control Agreement (Armstrong World Industries Inc)
Restrictive Covenants. 5.1 Executive acknowledges (a) For a period of three years from and after the Closing Date, without the prior written consent of Buyer, Parent and the Company covenant and agree that none of Parent, the Company, any Affiliate of any thereof or any Person now or hereafter controlled by Parent, the Company or any Affiliate of any thereof, excluding any Person who becomes an employee of Buyer on or after the Closing Date, will, directly or indirectly (on its, his or her own behalf or in the service or on behalf of others or jointly with any other Person):
(i) he has enter into, control, engage in, be employed by, provide managerial, supervisory, administrative or consulting services to, represent, have or acquire more than a major responsibility for 2% ownership or beneficial interest in or otherwise participate in, anywhere in the operationworld, administration, development and growth of the Company's business, (ii) his work for the Company has brought him and will continue to bring him into close contact any business with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of this Agreement (the "Termination Period"), Executive shall notoperations engaged, directly or indirectly, compete with respect in research, development, design, engineering, sale, distribution, installation, modification, service or support of (i) wireless asset and GPS tracking and monitoring products and services related to mobile refrigeration, heavy equipment or trucking applications, or activities related thereto or (ii) any products or services or products of the Company which type or that are either offered competitive with, products or are being developed services manufactured, sold or provided by the Company; or, without limiting Company on the generality date hereof or on the Closing Date or during the three year period ending on the Closing Date or any derivatives of the foregoing, be or becomeimprovements to such products or services, or agree activities related thereto; and
(ii) recruit, induce, solicit, hire or retain as an employee, independent contractor or consultant any Person who is an employee to be whom Buyer offers employment pursuant to Section 10.1(a) and, during such period, induce or becomeattempt to induce any such employee to terminate his or her employment with Buyer by resignation, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer retirement or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Company; provided, however, that Executive may ownnothing in this Section 8.7 prohibit publications by Parent or any Affiliate thereof of general advertisements offering employment so long as no such employee is hired.
(b) Parent and the Company recognize the importance of the covenants contained in this Section 8.7 and acknowledges that, solely based on their past experience, the restrictions imposed herein are (i) reasonable as an investmentto scope, time and area; (ii) necessary for the protection of Buyer's legitimate business interests, including the trade secrets, goodwill and relationships with customers, suppliers and employees of the Business; and (iii) not more than one percent (1%) unduly restrictive of any class rights of securities of any publicly held corporation in competition with Parent, the Company whose securities or their Affiliates. Parent and the Company acknowledge and agree that the covenants contained in this Section 8.7 are traded on any national securities exchange in the United States of America.
5.1.2 During the Term essential elements of this Agreement and during that but for these covenants Buyer would not have agreed to purchase the Termination PeriodAssets. The existence of any claim or cause of action against Buyer or any of its Affiliates by Parent, Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant tradeany of their Affiliates, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes whether predicated on breach of this AgreementAgreement or otherwise, shall not constitute a defense to the enforcement by Buyer of the covenants contained in this Section 8.7.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 c) If any of the Restrictive Covenantscovenant contained in this Section 8.7, or any part thereof, is held hereafter construed to be invalid or unenforceableunenforceable in any jurisdiction, the same shall not affect the remainder of the covenant covenants in such jurisdiction or covenantsthis Section 8.7 in any other jurisdiction, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if and any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination having jurisdiction shall have the power to reduce the duration duration, scope and/or area of such provision andcovenant so that, in its reduced form, such provision said covenant shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Alanco Technologies Inc), Asset Purchase Agreement (Alanco Technologies Inc), Asset Purchase Agreement (ORBCOMM Inc.)
Restrictive Covenants. 5.1 Executive acknowledges that (ia) he has a major responsibility for During the operation, administration, development and growth of the Company's business, Applicable Restricted Period (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of this Agreement (the "Termination Period"defined below), Executive shall will not, and will cause Executive’s affiliates not to, directly or indirectly, compete with respect engage or participate in, or render services to (whether as owner, operator, member, stockholder, manager, consultant, strategic partner, employee or otherwise) any services company, business, product or products service engaged in the development, manufacturing, marketing, distribution, sale or license, in each case, in the United States, of (i) any product included in the Company which are either offered Novitium Portfolio (as defined in the Merger Agreement), (ii) any 505(b)(2) Product (as defined in the Merger Agreement) or are being developed by (iii) any Parent Product (as defined in the Company; or, without limiting Merger Agreement) (“Competing Business”). For the generality purposes of the foregoing, Executive will not be in breach of this Section 4(a) solely by reason of (i) Executive’s ownership, together with that of Executive’s affiliates, of five (5%) percent or become, less of a Competing Business’ voting capital stock if (A) such Competing Business is publicly-traded and (B) Executive and Executive’s affiliates do not control the operation or agree to be management of such Competing Business or become, interested in or associated with, (ii) engaging in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect activity consented to any services or products of the Company which are either offered or are being developed in advance in writing by the Company; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America.
5.1.2 During the Term (b) Without limitations of Executive’s obligations under Section 6 of this Agreement and during the Termination PeriodAgreement, Executive shall agrees that at all times, both during and after the Term, Executive will not, and will cause Executive’s affiliates not to, directly or indirectly, utilize any Confidential Information (as defined below) to develop, manufacture, market, distribute, sell or license, in each case, (i) induce any product included in the Novitium Portfolio, (ii) any 505(b)(2) Product or (iii) any Parent Product, other than as is required by Executive to perform his duties under this Agreement for the benefit of the Company.
(c) During the Applicable Restricted Period, Executive will not, and will cause Executive’s affiliates not to, directly or indirectly, solicit for employment, recruit, engage or hire, either as an employee or a consultant, any employee, consultant or independent contractor of the Company or any of its subsidiaries; provided that the foregoing restrictions shall not restrict (i) placing general advertisements or listings for employment openings not specifically targeted at such employees, consultants or independent contractors of the Company or its Subsidiaries (“General Advertisement”) or (ii) hiring or offering to hire any person as a result of such General Advertisement.
(d) During the Applicable Restricted Period, Executive will not, and will cause Executive’s affiliates not to, directly or indirectly:
(i) interfere or attempt to influence interfere, in any material respect, with any transaction, agreement, prospective agreement, business opportunity or business relationship in which the Company or its subsidiaries is involved at any time during the Applicable Restricted Period; or
(ii) otherwise engage or participate in any effort or act to induce any person to discontinue a relationship with the Company or its subsidiaries; provided, however that notwithstanding the foregoing, nothing in this Section 4(d) shall prohibit Executive (x) from placing General Advertisements, (y) hiring or offering to hire any individual as a result of such General Advertisement or (z) hiring or offering to hire any individual who was terminated by the Company and its subsidiaries no less than 180 days prior to such hiring.
(e) For so long as he holds any equity securities of the Company or is a director, officer or employee of the Company or any of its subsidiaries, Executive will not, and will cause Executive’s affiliates not to, make or cause to leave be made any statement, comment or other communication, written or otherwise, that would reasonably be expected to constitute disparagement or criticism of, the Company or any of its employ, (ii) aid subsidiaries or agree to aid any competitor, customer of the products or supplier services of the Company or any of its subsidiaries. Notwithstanding the foregoing, nothing in this Section 4(e) shall preclude Executive or Executive’s affiliates from (a) making truthful and accurate statements or disclosures that are required or permitted by applicable law or legal process, including, but not limited to, responding truthfully to any attempt false or misleading comments made about Executive or Executive’s affiliates; (b) disclosing information about unlawful acts in the workplace, including, but not limited to, sexual harassment; (c) exercising Executive’s rights under the National Labor Relations Act, including but not limited to hire any person who shall have been employed the right to make good faith reports to government agencies about suspected violations of the law, or (d) providing feedback or performance reviews requested by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business its subsidiaries in connection with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of Executive’s employment with the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 2 contracts
Samples: Executive Employment Agreement (Ani Pharmaceuticals Inc), Executive Employment Agreement (Ani Pharmaceuticals Inc)
Restrictive Covenants. 5.1 Executive acknowledges that (i) he has a major responsibility for the operation, administration, development and growth of the Company's business, (ii) his work for the Company has brought him and will continue In order to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential induce Employer to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. AccordinglyAgreement, the Executive covenants and hereby agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement (a) While Executive is employed by Employer and for a period of twelve twenty-four (1224) months following after the effective date of termination of such employment for reasons other than those set forth in Section 5(b) of this Agreement Agreement, Executive shall not divulge or furnish any trade secrets (as defined in IND. CODE Section 24-2-3-2) of Employer or any confidential information acquired by him while employed by Employer concerning the "Termination Period")policies, plans, procedures or customers of Employer to any person, firm or corporation, other than Employer or with its prior written consent, or use any such trade secret or confidential information directly or indirectly for Executive's own benefit or for the benefit of any person, firm or corporation other than Employer, as such trade secrets and confidential information are confidential and shall at all times remain the property of Employer.
(b) For a period of twenty-four (24) months after the effective date of termination of Executive's employment hereunder for reasons other than those set forth in Section 5(b) of this Agreement, Executive shall not, directly or indirectly, compete with respect to provide banking or bank-related services to, or solicit the banking or bank-related business of, any customer of Employer at the time of such provision of services or products solicitation which Employee served either alone or with others while employed by Employer within St. Josexx, Xxkhart, Marsxxxx or LaPorte Counties in the State of the Company which are either offered or are being developed by the Company; or, without limiting the generality of the foregoing, be or becomeIndiana, or agree assist any actual or potential competitor of Employer to be provide banking or becomebank-related services to, interested in or associated withsolicit the banking or bank-related business of, any such customer in any capacity (whether such area, and Executive shall not, directly or indirectly, as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, or trustee, consultant, co-venturer or otherwise) with through the agency of any individual, corporation, firm, association, partnership, joint trade association, agent or agency, engage in any banking or bank-related business or venture or other business entity, which competes with respect to any services or products the business of the Company which are either offered or are being developed Employer as conducted during Executive's employment by the CompanyEmployer within such area; provided, however, that Executive may own, solely as an investment, own not more than one five percent (1%) of any class of the voting securities of any publicly held corporation in competition with entity providing banking or bank-related services within such area if the Company whose voting securities of such entity are traded on any a national securities exchange in the United States of Americaor quoted on a national interdealer quotation system.
5.1.2 During (c) Executive acknowledges that any violation of this Section 12 would cause irreparable harm to Employer, that damages for such harm would be incapable of precise measurement and that, accordingly, Employer would not have an adequate remedy at law to redress the harm caused by such violation. Therefore, Executive agrees that, in addition to any other remedy, Employer shall be entitled to immediate (i.e., without prior notice) preliminary and final injunctive relief to enjoin and restrain any violation of this Section 12. If Executive's employment is terminated during the Term of this Agreement and during the Termination Period, Executive shall not, directly or indirectly, (ifor reasons set forth in Section 5(b) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose have no obligations to anyone any information about the affairs of the Company, including, without limitation, Employer with respect to trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers confidential information or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of noncompetition under this AgreementSection 12.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 2 contracts
Samples: Employment Agreement (1st Source Corp), Employment Agreement (1st Source Corp)
Restrictive Covenants. 5.1 Executive 6.1 Consultant acknowledges that (i) he has a major responsibility for the operation, administration, development and growth of the Company's businessbusiness is or may become national or international in scope, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 6.1 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive Consultant covenants and agrees as follows:
5.1.1 (a) Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of and, if this Agreement is terminated for any reason during the Term, for two (2) years following such date of termination (the "Termination Period"), Executive the Consultant shall not, directly or indirectly, compete with respect to any services or products of the Company which are either offered or are being developed by the CompanyCompany as of the date of termination; or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executiveConsultant, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the CompanyCompany as of the date of termination; provided, however, that Executive the Consultant may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America, and may retain his ownership interest in those entities referred to in Section 4.1 above.
5.1.2 (b) During the Term term of this Agreement and during and, the Termination Period, Executive Consultant shall not, directly or indirectly, (i) induce or attempt to influence any employee executive of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aidCompany, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 (c) During the Term of this Agreement, the Termination Period, if applicable, Agreement and thereafter, Executive the Consultant shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive the Consultant make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by 6.2 If the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive Consultant breaches, or threatens to commit a breach of Section 5.1 6.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive (a) The Consultant shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to ExecutiveConsultant's benefit which are derived or received by Executive the Consultant or any person or business entity controlled by Executive the Consultant resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 (b) Notwithstanding the provisions of subsection 5.2.1 6.2(a) above, Executive the Consultant acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 56.1, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 6.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 6.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 2 contracts
Samples: Consulting Agreement (Hi Shear Technology Corp), Consulting Agreement (Hi Shear Technology Corp)
Restrictive Covenants. 5.1 Executive acknowledges (a) The Optionee shall not, at any time during the Term or during the eighteen month period immediately following Termination of Employment (the “Restricted Period”) directly or indirectly engage in, have any equity interest in, or manage or operate any person, firm, corporation, partnership or business (whether as director, officer, employee, agent, representative, partner, security holder, consultant or otherwise (each, a “Position”)) that engages in any business or activity (a “Competitive Activity”) which competes with any product line that, as of Termination of Employment, the Company or any entity owned by the Company anywhere in the world (i) he manufactures or provides; or (ii) has taken affirmative steps to commence manufacturing or providing. Notwithstanding the foregoing (x) the Optionee shall be permitted to acquire a major responsibility for passive stock or equity interest in such a business provided the operationstock or other equity interest acquired is not more than five percent (5%) of the outstanding interest in such business, administrationand (y) the Optionee shall, development and growth with the prior written consent of the Company's business, be permitted to hold a Position with a such a business so long as the Optionee and all persons who directly or indirectly report to the Optionee do not directly engage in any Competitive Activity.
(iib) his work for During the Company has brought him Restricted Period, the Optionee will not, and will continue to bring him into close contact with confidential information not permit any of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of this Agreement (the "Termination Period"), Executive shall nothis affiliates to, directly or indirectly, compete with respect to recruit or otherwise solicit or induce any services or products of the Company which are either offered or are being developed by the Company; oremployee, without limiting the generality of the foregoingcustomer, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Company; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and during the Termination Period, Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer subscriber or supplier of the Company in to terminate its employment or arrangement with the Company, otherwise change its relationship with the Company, or establish any attempt to hire relationship with the Optionee or any person who shall have been employed of his affiliates for any business purpose deemed competitive with any product line or service that, as of Termination of Employment, the Company or any entity owned by the Company within anywhere in North American (i) manufactures or provides; or (ii) has taken affirmative steps to commence manufacturing or providing.
(c) Except as required in the twelve (12faithful performance of the Optionee’s duties and responsibilities of employment or pursuant to Section 4.7(d) month period preceding such requested aidthe Optionee shall, in perpetuity, maintain in confidence and shall not directly, indirectly or otherwise, use, disseminate, disclose or publish, or (iii) induce use for his benefit or attempt the benefit of any person, firm, corporation or other entity any confidential or proprietary information or trade secrets of or relating to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secretsinformation with respect to the Company’s operations, trade "know-how"processes, products, inventions, customer listsbusiness practices, business plansfinances, operational principals, vendors, suppliers, customers, potential customers, marketing methods, pricing policiescosts, marketing plansprices, sales planscontractual relationships, identity of suppliers or customersregulatory status, sales, profits compensation paid to employees or other financial informationterms of employment, which is or deliver to any person, firm, corporation or other entity any document, record, notebook, computer program or similar repository of or containing any such confidential or proprietary information or trade secrets. The parties hereby stipulate and agree that as between them the foregoing matters are important, material and confidential proprietary information and trade secrets and affect the successful conduct of the businesses of the Company (and any successor or assignee of the Company). Upon termination of the Optionee’s employment with the Company for any reason, the Optionee will promptly deliver to the Company or is not generally known in the relevant tradeall correspondence, nor shall Executive make use of any such information for his own benefit. Any techniquedrawings, methodmanuals, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-howletters, documentsnotes, notebooks, reports, programs, plans, proposals, marketing and sales financial documents, or any other documents concerning the Company’s customers, business plans, client listsmarketing strategies, client files products or processes.
(d) The Optionee may respond to a lawful and materials made by him valid subpoena or by other legal process but shall give the Company are the property earliest possible notice thereof, shall, as much in advance of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliverreturn date as possible, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies make available to the Company at law and its counsel the documents and other information sought and shall assist such counsel in resisting or otherwise responding to such process.
(e) The Optionee agrees not to disparage the Company, any of its products or practices, or any of its directors, officers, agents, representatives, stockholders or affiliates, either orally or in equitywriting, at any time.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in (f) In the event the terms of a violation or threatened violation of any of the provisions of this Section 5, the Company 4.7 shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision determined by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth its extending for too great a period of such scope time or otherwiseover too great a geographical area or by reason of its being too extensive in any other respect, it will be interpreted to extend only over the maximum period of time for which it may be enforceable, over the maximum geographical area as to which it may be enforceable, 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.
(g) As used in this Section 4.7, the term “Company” shall include the Company, its parent, related entities, and any of its direct or indirect Subsidiaries.
(h) Notwithstanding the foregoing, in any case in which the subject matter of any of subsections (a) through (c) and (e) above is covered in a written employment agreement between the intention Company or any Subsidiary of the parties hereto that such determination not bar or in any way affect Company and the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictionsOptionee, the above covenants as they relate terms of that employment agreement will govern with respect to each jurisdiction being, for this purpose, severable into diverse and independent covenantsthat subject matter.
Appears in 2 contracts
Samples: Non Qualified Option Agreement (Norcross Safety Products LLC), Non Qualified Option Agreement (Safety Products Holdings, Inc.)
Restrictive Covenants. 5.1 Executive acknowledges that (i) he has a major responsibility for The Buyer and the operation, administration, development and growth of Aligned Parties acknowledge that (a) the Company's business, (ii) his work for the Company has brought him Aligned Parties are and will continue to bring him into close contact with confidential information of be engaged in the Company and its customers, and Call Center Business in the Aligned Territory; (iiib) the agreements and covenants contained in this Section 5 6.1 are essential to protect the business interest goodwill of the Company Call Center Business being conducted by the Aligned Parties in the Aligned Territory; and that (c) but for the Company will agreement of the Buyer to the provisions of this Section 6.1, the Aligned Parties would not have agreed to enter into this Agreement but for such agreements and covenants. Accordingly, the Executive Transactions to which they are a party.
(ii) The Buyer covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreementthat, during the Term Restricted Period, the Buyer, the Company and their respective affiliates (but excluding any non-management shareholder of this Agreement and for a period of twelve (12the Buyer) months following the termination of this Agreement (the "Termination Period"), Executive shall not, anywhere in the Aligned Territory, directly or indirectly, compete acting individually or as the owner, shareholder, partner, member, employee or consultant of any entity other than Aligned LLC, Aligned Corp. or one of its subsidiaries, directly or indirectly, (A) engage in or own or operate a business competitive with respect or similar to the Call Center Business; (B) whether or not for compensation, enter the employ of, or render any personal services to or for the benefit of, or assist in or facilitate the solicitation of customers for, or receive remuneration in the form of salary, commissions or otherwise from, any business competitive with or similar to the Call Center Business; (C) as owner or lessor of real estate or personal property, rent to or lease any facility, equipment or other assets to any services business engaged in activities competitive with or products of similar to the Company which are either offered Call Center Business; or are being developed by the Company; or(D) receive or purchase a financial interest in, without limiting the generality of the foregoing, be or becomemake a loan to, or agree to be or becomemake a gift in support of, interested in or associated with, any such business in any capacity (whether capacity, including as a sole proprietor, partner, shareholder, ownermember, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer trustee or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Companylender; provided, however, that Executive the Buyer, the Company or an affiliate may own, directly or indirectly, solely as an investment, securities of any business traded on any national securities exchange or NASDAQ, provided that such Aligned Party or such affiliate is not more than one a controlling person of, or a member of a group that controls, such business and further provided that such Aligned Party or such affiliates does not, in the aggregate, directly or indirectly, own two percent (12%) or more of any class of securities of any publicly held corporation in competition with such business. The Restricted Period shall be extended by the Company whose securities are traded on any national securities exchange in the United States number of America.
5.1.2 During the Term of this Agreement and during the Termination Period, Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company days in any attempt to hire any person who shall have been employed by period in which the Company within the twelve (12) month period preceding such requested aidBuyer, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use any of their respective affiliates (but excluding any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all knownon-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property management shareholder of the Company and shall not be used Buyer) is determined by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid in default or unenforceable, the same shall not affect the remainder breach of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceablethis Section 6.1(a).
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Apollo Medical Holdings, Inc.), Stock Purchase Agreement (Apollo Medical Holdings, Inc.)
Restrictive Covenants. 5.1 Executive acknowledges that (i) he has a major responsibility for the operationEach Stockholder agrees that, administrationexcept as provided in Section 4(d), development and growth of the Company's business, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following three years from the termination date of this Agreement (the "Termination Period")Agreement, Executive shall such Stockholder will not, and will cause its Affiliates not to, directly or indirectly, compete with respect to any services or products without the consent of the Company which are either offered Company:
(1) engage or are being developed by the Company; orassist any Person in engaging in, without limiting the generality of the foregoing, be or becomeindividually, or agree to be or becomeas an officer, interested in or associated withdirector, in any capacity (whether as a partneremployee, agent, consultant, shareholder, owner, officerpartner, directormanager, executivemember, consultant, principal, agentor in any other capacity, creditoror render any services to, trustee, consultant, co-venturer any business operating in any country where the Company or otherwise) any of its Subsidiaries or any of its Joint Ventures currently does business that competes with any individual, corporation, firm, association, partnership, joint venture or other business entity, in which competes with respect to any services or products of the Company which are either offered or are being developed by the Companyis engaged to in a material way in that country; provided, however, that Executive may ownthe ownership, solely as an investmentbeneficial or otherwise, by any Stockholder of not more than one percent (1%) % of any class of equity securities of any publicly held corporation enterprise that engages in competition a competing business, if such equity securities are listed on a recognized securities exchange, shall not be deemed to be a breach of this Section 4(c)(i); provided further that notwithstanding anything in this Agreement to the contrary, this Section 4(c)(i) shall not restrict the ability of any Stockholder or its Affiliates to be a director, officer or employee of, or have any other relationship with, or to own equity securities, of Lennar (as defined below); or
(2) in any manner solicit, induce or attempt to induce, or assist others to solicit, induce or attempt to induce, any customer, supplier, contractor or client associated with the Company whose securities are traded on or any national securities exchange of its Subsidiaries or any of its Joint Ventures at such time, or, in the United States case of America.a customer who purchased goods or services from the Company in the prior year, to terminate or materially and adversely alter its, his or her association with the Company or any of its Subsidiaries or any of its Joint Ventures or in any other manner interfere with any agreement or contract between the Company or any of its Subsidiaries or any of its Joint Ventures and any such Person; or
5.1.2 During (ii) Each Stockholder agrees that, except as provided in Section 4(d), for a period of eighteen months from the Term date of this Agreement Agreement, such Stockholder will not, and during the Termination Period, Executive shall notwill cause its Affiliates not to, directly or indirectly, (i) induce without the consent of the Company, solicit, or attempt to influence solicit, interfere with, or endeavor to cause any employee of the Company or any of its Subsidiaries or any of its Joint Ventures to leave its employ, (ii) aid his or agree to aid any competitor, customer her employment or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence induce any person or business entity who was a customer or supplier employee of the Company during or any portion of said period its Subsidiaries or any of its Joint Ventures to transact business breach his or her employment or consulting agreement with the Company, provided that nothing will prevent any Stockholder, or any entity of which a competitor Stockholder is an equity owner, a director or an employee, or with which the Stockholder has any other type of relationship, from advertising to fill job vacancies, provided the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall advertisements are not other than in the performance of his duties disclose to anyone any information about the affairs directed primarily at employees of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 2 contracts
Samples: Voting Agreement (Mfa Limited Partnership), Voting Agreement (LNR Property Corp)
Restrictive Covenants. 5.1 Executive acknowledges that (i) he has a major responsibility for the operation, administration, development and growth of the Company's business, (ii) the Company's business has become international in scope, (iii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iiiiv) the agreements and covenants contained in this Section 5 Subsection 5.1 are essential to protect the business interest interests of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of this Agreement (the "Termination Period"), two years thereafter Executive shall not, directly or indirectly, compete with respect to any services or products of the Company which are either offered or are being developed by the CompanyCompany as of the date of termination; or, without limiting the generality of the foregoing, be by or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executiveExecutive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the CompanyCompany as of the date of termination; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of Americaexchange.
5.1.2 During the Term of this Agreement and during and, for a period of two years thereafter (the "Termination Period"), Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve one (121) month year period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business, or (iv) induce or attempt to influence any of the research partners and contract researchers of the Company, which had a contractual relationship with the Company during the term of this Agreement, to terminate or otherwise adversely affect their relationship with the Company or any affiliate of the Company.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, Period and any time thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the confidential or proprietary affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section breaches Subsection 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5Subsection 5.1.1, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of or proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination determination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to of the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 2 contracts
Samples: Employment Agreement (Mymetics Corp), Employment Agreement (Mymetics Corp)
Restrictive Covenants. 5.1 Executive acknowledges that (i) he has a major responsibility for the operation, administration, development and growth of the Company's business, (ii) his work for the Company has brought him and will continue In order to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential induce Employer to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. AccordinglyAgreement, the Executive covenants and hereby agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement (a) While Executive is employed by Employer and for a period of twelve twenty-four (1224) months following after the effective date of termination of such employment for reasons other than those set forth in Section 5(b) of this Agreement Agreement, Executive shall not divulge or furnish any trade secrets (as defined in IND. CODE Section 24-2-3-2) of Employer or any confidential information acquired by him while employed by Employer concerning the "Termination Period")policies, plans, procedures or customers of Employer to any person, firm or corporation, other than Employer or with its prior written consent, or use any such trade secret or confidential information directly or indirectly for Executive's own benefit or for the benefit of any person, firm or corporation other than Employer, as such trade secrets and confidential information are confidential and shall at all times remain the property of Employer.
(b) For a period of twenty-four (24) months after the effective date of termination of Executive's employment hereunder for reasons other than those set forth in Section 5(b) of this Agreement, Executive shall not, directly or indirectly, compete with respect to provide banking or bank-related services to, or solicit the banking or bank-related business of, any customer of Employer at the time of such provision of services or products solicitation which Employee served either alone or with others while employed by Employer within St. Josexx, Xxkhart, Marsxxxx xx LaPorte Counties in the State of the Company which are either offered or are being developed by the Company; or, without limiting the generality of the foregoing, be or becomeIndiana, or agree assist any actual or potential competitor of Employer to be provide banking or becomebank-related services to, interested in or associated withsolicit the banking or bank-related business of, any such customer in any capacity (whether such area, and Executive shall not, directly or indirectly, as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, or trustee, consultant, co-venturer or otherwise) with through the agency of any individual, corporation, firm, association, partnership, joint trade association, agent or agency, engage in any banking or bank-related business or venture or other business entity, which competes with respect to any services or products the business of the Company which are either offered or are being developed Employer as conducted during Executive's employment by the CompanyEmployer within such area; provided, however, that Executive may own, solely as an investment, own not more than one five percent (1%) of any class of the voting securities of any publicly held corporation in competition with entity providing banking or bank-related services within such area if the Company whose voting securities of such entity are traded on any a national securities exchange in the United States of Americaor quoted on a national interdealer quotation system.
5.1.2 During (c) Executive acknowledges that any violation of this Section 12 would cause irreparable harm to Employer, that damages for such harm would be incapable of precise measurement and that, accordingly, Employer would not have an adequate remedy at law to redress the harm caused by such violation. Therefore, Executive agrees that, in addition to any other remedy, Employer shall be entitled to immediate (i.e., without prior notice) preliminary and final injunctive relief to enjoin and restrain any violation of this Section 12. If Executive's employment is terminated during the Term of this Agreement and during the Termination Period, Executive shall not, directly or indirectly, (ifor reasons set forth in Section 5(b) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose have no obligations to anyone any information about the affairs of the Company, including, without limitation, Employer with respect to trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers confidential information or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of noncompetition under this AgreementSection 12.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 2 contracts
Samples: Employment Agreement (1st Source Corp), Employment Agreement (1st Source Corp)
Restrictive Covenants. 5.1 Executive Xxxxxx acknowledges and agrees that (ia) through his past and continuing services to the Company, he has a major responsibility for the operation, administration, development will learn valuable trade secrets and growth of other proprietary information relating to the Company's business, ; (iib) his work for Xxxxxx'x services to the Company has brought him are unique in nature; (c) the Company's business is international in scope; and will continue (d) the Company would be irreparably damaged if Xxxxxx was to bring him into close contact with confidential information provide services to any person or entity in violation of the Company and its customers, and (iii) the agreements and covenants restrictions contained in this Section 5 are essential Agreement. Accordingly, as an inducement to protect the business interest of the Company and that the Company will not to enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, Xxxxxx agrees that during the Term of this Agreement and for a two years thereafter (such period of twelve (12) months following the termination of this Agreement (being referred to herein as the "Termination Restricted Period"), Executive Xxxxxx shall not, directly or indirectly, compete with respect to either for himself or for any services other person or products entity, without the prior written consent of the Company which are either offered Company:
(a) anywhere in the United States or are being developed by the Company; orCanada, without limiting the generality of the foregoing, be engage or becomeparticipate in, or agree to assist, advise or be or becomeconnected with (including as an employee, interested in or associated withowner, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trusteeadvisor, consultant, co-venturer agent or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products (without limitation by the specific enumeration of the Company which are either offered or are being developed by the Company; provided, however, that Executive may own, solely as an investment, not more than one percent (1%foregoing) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and during the Termination Period, Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aidotherwise), or (iii) induce permit his name to be used by or attempt to influence render services for, any person or entity engaged in, or making plans to engage in, a business entity who was a customer that competes with the business conducted by, or supplier of the Company during any portion of said period proposed to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreementbe conducted by, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant tradeTotal Control Products, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a Inc. ("trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive CovenantsTCP"), the Company shall have the following rights and remedies, each majority shareholder of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law (a "Competing Business");
(b) solicit, attempt to solicit, aid in the solicitation of or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or accept any orders from any person or business entity controlled by Executive resulting who is or has been a customer of the Company or its Affiliates, at any time during the period beginning one year prior to the expiration of the Term through the Restricted Period, to purchase products or services from any action person or transactions constituting a breach entity which products or services could have been supplied or performed, as the case may be, by the Company or its Affiliates (other than from the Company or its Affiliates);
(c) solicit, attempt to solicit or aid in the solicitation of any person or entity who is or has been a customer, supplier, licensor, licensee or person or entity having any other business relationship with the Company or any of its Affiliates, at any time during the period beginning one year prior to the expiration of the Term through the Restrictive Covenants.Period, to cease doing business with or alter its business relationship with the Company or its Affiliates; or
5.2.2 Notwithstanding (d) solicit or hire any person or entity who is a director, officer, employee, independent contractor or agent of the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation Company or threatened violation of any of the provisions of Section 5, its Affiliates to perform services for any person or entity other than the Company shall have no adequate remedy at law and shall therefore be entitled or its Affiliates or to enforce each such provision by temporary terminate his or permanent injunctive her employment with the Company or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equityits Affiliates.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 2 contracts
Samples: Employment Agreement (Total Control Products Inc), Employment Agreement (Total Control Products Inc)
Restrictive Covenants. 5.1 Executive acknowledges The Parties agree that (i) he has the Company is engaged in a major responsibility for the operation, administration, development highly competitive industry and growth of would suffer irreparable harm and incur substantial damage if Employee were to enter into competition with the Company's business. Therefore, (ii) his work in order for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the its legitimate business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordinglyinterests, the Executive Employee covenants and agrees as follows:
5.1.1 a. Except as otherwise provided for set forth in Section 1(c) of this Agreement, Employee shall not, at any time during his employment with the Term Company, either directly or indirectly, accept employment with or render services to, whether as an employee, independent contractor, consultant, or otherwise, any person or entity other than the Company without the prior written consent of this Agreement the Company, which consent shall not be unreasonably withheld by the Company but may nevertheless be determined in the sole discretion of the Company;
b. Employee shall not, for a period of six (6) months after his employment with the Company ceases, anywhere in the States of New York or New Jersey, either directly or indirectly: (i) accept employment with or render services to any person or entity that is a business competitor of the Company, or has at any time during Employee’s employment with the Company engaged or attempted to engage in business competition with the Company, in a position, capacity, or function that is similar, in title or substance, whether in whole or in part, to any position, capacity, or function that Employee held with or in which Employee served the Company; or (ii) invest in any person or entity that is a business competitor of the Company, or has at any time during Employee’s employment with the Company engaged or attempted to engage in business competition with the Company, except that Employee may own up to one percent (1%) of any outstanding class of securities of any company registered under Section 12 of the Securities Exchange Act of 1934, as amended;
c. Employee shall not, at any time during his employment with the Company and for a period of twelve (12) months following thereafter, for any reason, on his own behalf or on behalf of any other person or entity: (i) solicit, invite, induce, cause, or encourage to alter or terminate his, her, or its business relationship with the termination Company any client, customer, supplier, vendor, licensee, licensor, or other person or entity that, at any time during Employee’s employment with the Company, had a business relationship with the Company, or any person or entity whose business the Company was soliciting or attempting to solicit at the time of this Agreement Employee’s termination, (a) with whom Employee had contact, or for whom Employee performed services, to any extent, during his employment with the "Termination Period")Company, Executive and (b) with whom Employee did not have a business relationship prior to his employment with the Company; (ii) solicit, entice, attempt to solicit or entice, or accept business from any such client, customer, supplier, vendor, licensee, licensor, person, or entity; or (iii) interfere or attempt to interfere with any aspect of the business relationship between the Company and any such client, customer, supplier, vendor, licensee, licensor, person, or entity; and
d. Employee shall not, at any time during his employment with the Company and for a period of twelve (12) months thereafter, either directly or indirectly, compete with respect to on his own behalf or on behalf of any services other person or products entity: (i) solicit, invite, induce, cause, or encourage any director, officer, employee, agent, representative, consultant, or contractor of the Company which are either offered to alter or are being developed by terminate his, her, or its employment, relationship, or affiliation with the Company; or, without limiting the generality (ii) interfere or attempt to interfere with any aspect of the foregoingrelationship between the Company and any such director, be or becomeofficer, employee, agent, representative, consultant, or agree contractor; or (iii) engage, hire, or employ, or cause to be engaged, hired, or become, interested in or associated withemployed, in any capacity (whether as a partnerwhatsoever, shareholder, ownerany such director, officer, director, executive, principalemployee, agent, creditor, trusteerepresentative, consultant, co-venturer or otherwise) with any individualcontractor. Employee represents, corporationwarrants, firmagrees, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Company; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and during the Termination Period, Executive shall not, directly or indirectly, understands that: (i) induce or attempt to influence any employee the covenants and agreements set forth in this Section 4 of the Company to leave its employAgreement are reasonable in their geographic scope, temporal duration, and content; (ii) aid or agree the Company’s agreement to aid any competitoremploy Employee, customer or supplier and a portion of the Company compensation to be paid to Employee hereunder, are in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding consideration for such requested aid, or covenants and Employee’s continued compliance therewith; (iii) induce Employee shall not raise any issue of, nor contest or attempt to influence any person or business entity who was a customer or supplier dispute, the reasonableness of the Company during geographic scope, temporal duration, or content of such covenants and agreements in any portion proceeding to enforce such covenants and agreements; (iv) the enforcement of said period any remedy under this Agreement will not prevent Employee from earning a livelihood, because Employee’s past work history and abilities are such that Employee can reasonably expect to transact business with a competitor find work in other areas and lines of business; (v) the covenants and agreements set forth in this Section 4 of the Company Agreement are essential for the Company’s reasonable protection, are designed to protect the Company’s legitimate business interests, and are necessary and implemented for legitimate business reasons; and (vi) in Company's business.
5.1.3 During the Term of entering into this Agreement, the Termination Period, if applicable, Company has relied upon Employee’s representation that he will comply in full with the covenants and thereafter, Executive shall not other than agreements set forth in the performance of his duties disclose to anyone any information about the affairs this Section 4 of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 2 contracts
Samples: Employment Agreement (Motif Bio PLC), Employment Agreement (Motif Bio PLC)
Restrictive Covenants. 5.1 Executive acknowledges that (ia) he has a major responsibility for the operation, administration, development and growth In partial consideration of the Company's business, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information payment of the Company Purchase Price, as set forth in Section 2.3, Sellers and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees Purchaser agree as follows:
5.1.1 (i) Except as otherwise provided for in this Agreement, during the Term of contemplated or permitted under this Agreement and or any of the Ancillary Agreements, for a period of twelve seven (127) months following years after (and subject to the termination of this Agreement occurrence of) the Closing (the "Termination “Restricted Period"”), Executive Sellers and their respective Affiliates shall notnot engage, directly or indirectly, compete with respect in any business in Canada, the United States or Mexico (“Purchaser’s Territory”) that designs, engineers, manufactures, distributes, sells, markets and/or services any Farm Tires, or any tires substantially similar to any services or products of the Company which are either offered or are being developed by the Company; Farm Tires (collectively, “Competing Products”), or, without limiting the generality prior written consent of the foregoingPurchaser, be directly or becomeindirectly, own an interest in, manage, license, operate, join, control, lend money or agree render financial or other assistance to be or become, interested participate in or associated be connected with, in any capacity (whether as a partner, shareholderstockholder, owner, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer consultant or otherwise) with , any individualPerson that designs, corporationengineers, firmmanufactures, associationsells, partnership, joint venture or other business entity, which competes with respect to any markets and/or services or products of the Company which are either offered or are being developed by the CompanyCompeting Products in Purchaser’s Territory; provided, however, that Executive Sellers and their respective Affiliates may ownengage in such design and engineering activities in Purchaser’s Territory necessary to support the production of Competing Products manufactured outside Purchaser’s Territory, solely as an investmentand provided further that, not (A) for the purposes of this Section 6.12(a), ownership of securities having no more than one two percent (1%) of the outstanding voting power of any class of securities of any publicly held corporation in competition with the Company whose securities competitor which are traded listed on any national securities exchange or traded actively in the United States national over-the-counter market shall not be deemed to be in violation of Americathis Section 6.12(a) so long as the Person owning such securities has no other connection or relationship with such competitor and (B) nothing herein or in any of the Ancillary Agreements shall be deemed to or shall prohibit Sellers or any of their respective Affiliates from (w) effecting any purchase or sale contemplated by Section 6.15 hereof (or any related service), (x) purchasing, selling or servicing Competing Products to or for end users (other than original equipment manufacturers) in Purchaser’s Territory, provided, in respect of purchases and sales, of any Licensed Products that those Licensed Products were either purchased from Purchaser or constituted finished goods transferred to, located at, or owned by Sellers and/or their Affiliates retail outlets as of the Closing Date, (y) selling tires mounted on original equipment vehicles in any location other than Purchaser’s Territory, even with the understanding that such tires will be shipped to Purchaser’s Territory or (z) taking any of the foregoing actions in respect of (including, without limitation, owning or acquiring an interest in, lending money to and rendering financial or other assistance to) dealers, distributors and other Persons that sell or service Competing Products to or for dealers or end users, other than original equipment manufacturers.
5.1.2 During (ii) As a separate and independent covenant, Sellers agree with the Term Purchaser that, for a period of this two (2) years following the Closing, Sellers and their respective Affiliates will not, except as required or permitted under the Employee Leasing Contract or the Consulting Agreement dated as of September 2, 2004, by and during the Termination Periodbetween Goodyear and Exxxxx Xxxxx, Executive shall notin any way, directly or indirectly, (iA) solicit or attempt to solicit for employment any employees of Purchaser with whom Sellers came in contact during the negotiation, drafting or performance hereof other than pursuant to one or more general advertisements not targeted at employees of Purchaser, (B) initiate or maintain contact, or attempt to initiate or maintain contact with any officer-level employee of Purchaser regarding employment or (C) induce or attempt to influence induce any of them to violate the terms of their contracts, or any employment arrangements, with Purchaser; provided, however, that nothing herein shall prohibit any Seller or any of Sellers’ respective Affiliates from soliciting or hiring any employee of Purchaser after the Company shorter of six (6) months from the date such employee’s employment with Purchaser terminates for reasons not associated with a prohibited solicitation or contact or eighteen (18) months from the date hereof.
(iii) The Restricted Period shall be extended by the length of any period during which any one of the Sellers or any one of their Affiliates is in breach of the terms of this Section 6.12(a).
(iv) Sellers acknowledge that the covenants of Sellers set forth in this Section 6.12(a) are an essential element of this Agreement and that, but for the agreement of the Sellers to leave comply with these covenants, Purchaser would not have entered into this Agreement. Sellers acknowledge that this Section 6.12(a) constitutes an independent covenant and shall not be affected by performance or nonperformance of any other provision of this Agreement by Purchaser. Sellers have independently consulted with their counsel and after such consultation agree that the covenants set forth in this Section 6.12(a) are reasonable and proper.
(v) The non-compete provisions of Section 6.12(a) shall terminate if (i) Purchaser commences a voluntary Chapter 7 petition in bankruptcy or has such a petition filed against it, unless Purchaser contests such petition and obtains its employdismissal or conversion to Chapter 11, or (ii) Purchaser is the subject of a Chapter 11 case and said case is converted to Chapter 7, or (iii) Purchaser discontinues all or substantially all of its tire business. If Purchaser sells all or substantially all of its tire business then the prohibition against licensing shall terminate unless the purchaser is a Goodyear approved assignee of the Trademark License Agreement.
(b) In partial consideration of the transfer of the Purchased Assets, Sellers and Purchaser agree as follows:
(i) Except as contemplated or permitted under this Agreement or any of the Ancillary Agreements, during the Restricted Period, Purchaser and its Affiliates shall not engage, directly or indirectly, in any business anywhere other than in Purchaser’s Territory, that designs, engineers, manufactures, sells, markets and/or services tires that from time to time constitute Licensed Products, or, without the prior written consent of the Sellers, directly or indirectly, own an interest in, manage, operate, join, control, lend money or render financial or other assistance to or participate in or be connected with, as a partner, stockholder, consultant or otherwise, any Person that designs, engineers, manufactures, distributes, sells, markets and/or services tires that from time to time constitute Licensed Products other than in Purchaser’s Territory; provided, however, that (i) for the purposes of this Section 6.12(b), ownership of securities having no more than two percent of the outstanding voting power of any competitor which are listed on any national securities exchange or traded actively in the national over-the-counter market shall not be deemed to be in violation of this Section 6.12(b) so long as the Person owning such securities has no other connection or relationship with such competitor and (ii) nothing herein or in the Ancillary Agreements shall be deemed to or prohibit Purchaser or any of its Affiliates from selling or servicing Competing Products which are not Licensed Products to or for end users outside of Purchaser’s Territory.
(ii) As a separate and independent covenant, Purchaser agrees with Sellers that, for a period of two (2) years following the Closing, Purchaser and its Affiliates will not, except as required or permitted under the Employee Leasing Contract, or Section 7.1 hereof, in any way, directly or indirectly (i) solicit or attempt to solicit for employment any employees of any Seller with whom it came in contact during the negotiation, drafting or performance hereof other than pursuant to one or more general advertisements not targeted at employees of any Seller, (ii) aid initiate or agree to aid any competitormaintain contact, customer or supplier of the Company in any attempt to hire initiate or maintain contact with any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, officer-level employee of any Seller regarding employment or (iii) induce or attempt to influence induce any person of them to violate the terms of their contracts, or business entity who was any employment arrangements, with any Seller; provided, however, that nothing herein shall prohibit Purchaser or any of its Affiliates from soliciting or hiring any employee of any Seller after the shorter of six (6) months from the date such employee’s employment with such Seller terminates for reasons not associated with a customer prohibited solicitation or supplier contact or eighteen (18) months from the date hereof; provided, however, that Purchaser shall have the right to hire Exxxxx Xxxxx.
(iii) The Restricted Period, as to Purchaser or any of its Affiliates, shall be extended by the length of any period during which Purchaser or its Affiliates are in breach of the Company during any portion terms of said period to transact business with a competitor of the Company in Company's businessthis Section 6.12(b).
5.1.3 During (iv) Purchaser acknowledges that the Term covenants of Purchaser and its Affiliates set forth in this Section 6.12(b) are an essential element of this AgreementAgreement and that, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" but for the purposes agreement of Purchaser to comply with these covenants, Sellers would not have entered into this Agreement.
5.1.4 Executive hereby agrees . Purchaser acknowledges that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company this Section 6.12(b) constitutes an independent covenant and shall not be used affected by him in performance or nonperformance of any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used other provision of this Agreement by any third party without specific direction or consent of Seller. Purchaser has independently consulted with its counsel and after such consultation agrees that the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have covenants set forth in any such trade secret or proprietary informationthis Section 6.12(b) are reasonable and proper.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (c) Sellers and Purchaser agree that the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and for any breach by Sellers or Purchaser, as the case may be, of this Section 6.12 will be inadequate and, notwithstanding any other provision herein, that Purchaser or any Seller, as the case may be, shall therefore be entitled to enforce each such injunctive relief. The parties intend that the unenforceability or invalidity of any term or provision of this Section 6.12 shall not render any other term or provision contained herein unenforceable or invalid. If the activities described in this Section 6.12 should be deemed by temporary or permanent injunctive or mandatory relief obtained in any a court of competent jurisdiction without to be too extensive, then the necessity parties intend that this Section 6.12 be construed to cover the maximum scope of proving damagesbusiness activities, posting any bond or other security, period of time and without prejudice to any other rights and remedies which geographic area as may be available at law or in equitypermissible under applicable Law.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Titan International Inc), Asset Purchase Agreement (Titan International Inc)
Restrictive Covenants. 5.1 Executive acknowledges that (i) he has a major responsibility for During the operationRestricted Period, administration, development and growth of the Company's business, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customerseach Class B Member shall not, and (iii) the agreements shall cause its Principals and covenants contained in this Section 5 are essential Affiliates to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of this Agreement (the "Termination Period"), Executive shall not, directly or indirectly, compete with respect to any without in each instance the prior written consent of the Managing Member:
(i) invest in, own, manage, operate, finance, control, be employed by, or participate in the ownership, management, operations, financing or control of, lend its name or a similar name to, lend its credit to, render services or products advice to, or otherwise assist, any Person (other than to the Company or a Subsidiary of the Company which are either offered Company) that engages in, owns, invests in, operates, manages or are being developed by the Company; orcontrols, without limiting the generality of the foregoingany venture, be or becomebusiness, or agree to be enterprise engaged in providing Competitive Investment Services in North America, Europe or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the CompanyAsia; provided, however, that Executive a Class B Member may own, solely as an investment, not (A) own no more than one percent (1%) 3% of any class of securities of any publicly held corporation in competition with the Company whose securities are Person traded on any national securities exchange and no more than 5% of any class of securities of any Person whose securities are not traded on any national securities exchange (so long as such securities do not constitute more than 5% of the overall equity or voting power of such Person) and (B) may provide investment advice for managing the assets of himself or members of his Immediate Family; provided, further, that in the United States event a Class B Member’s employment is terminated by the Company or any of America.
5.1.2 During its Subsidiaries thereof other than a termination For Cause (as such term is defined in the Term Amended and Restated Operating Agreement of ZXXX Group, LLC, as such is in effect from time to time), the provisions of this Agreement Section 8.8(b)(i) shall automatically terminate with respect to, and during the Termination Periodno longer be applicable to, Executive shall notsuch Class B Member;
(ii) solicit, directly hire or indirectlyemploy, or otherwise engage (ior assist any other Person in soliciting, hiring, employing or otherwise engaging) induce as an employee, independent contractor or attempt to influence otherwise, any employee of the Company to leave or any of its employSubsidiaries who was employed or engaged by the Company or any of its Subsidiaries, (ii) aid or agree to aid in any competitor, customer way interferes with any such person’s contractual arrangements or supplier relationship with any of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or its Subsidiaries;
(iii) solicit (or assist any other Person in soliciting) the business of any current, former or prospective Client of any of the Company or any of its Subsidiaries (excluding any Person that has not been a Client or prospective Client of the Company or any of its Subsidiaries within one year prior to such solicitation); provided, however, that a Class B Member shall not be deemed to be in violation of this Section 8.8(b)(iii) solely by virtue of such Class B Member’s employment by or association with a Person that such Class B Member does not control (even if such Person solicits any such current former, or prospective Client of the Company or any of its Subsidiaries), so long as the Class B Member is not engaged in, does not participate in or encourage and is not directly or indirectly in any way responsible for such solicitation or persuasion efforts;
(iv) otherwise induce or attempt to influence induce (or assist any person other Person in inducing) any current, former or business entity who was a customer or supplier of the Company during any portion of said period prospective Client to transact cease doing business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant tradeany of its Subsidiaries, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents interfere with the relationship between any current, former or things prospective Client and the Company or any of its Subsidiaries;
(v) issue, disseminate or otherwise make public any written or oral statements likely to be delivered disparage or used by any third party without specific direction harm the business or consent reputation of the Board Company or any of Directors its Subsidiaries or the reputation of any executive or employee of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary informationits Subsidiaries; or
(vi) breach its covenants under Section 13.1.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (ZAIS Group Holdings, Inc.), Investment Agreement (Hf2 Financial Management Inc.)
Restrictive Covenants. 5.1 Executive Employee acknowledges and agrees that (i) he has a major responsibility for the operation, administration, development and growth as an employee of the Company he shall possess and learn valuable trade secrets and other proprietary information relating to the Company's ’s business, (ii) his work for Employee’s services to the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customersare unique in nature, and (iii) the agreements Company’s business is national in scope and covenants (iv) the Company may be irreparably damaged if the Employee were to provide services to any person or entity in violation of the restrictions contained in this Section 5 are essential to protect the business interest of Agreement. Accordingly, as an inducement for the Company and that the Company will not to enter into this Agreement but for such agreements and covenants. AccordinglyAgreement, the Executive covenants and Employee agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, that during the Term of this Agreement period that he is employed by the Company and for a period of twelve one (121) months following year thereafter (such period being referred to herein as the termination of this Agreement (the "Termination “Restricted Period"”), Executive Employee shall not, directly or indirectly, compete with respect to any services or products of the Company which are either offered or are being developed by the Company; or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partnerprincipal, shareholder, owneragent, officer, director, executive, principal, agent, creditor, trusteeemployee, consultant, co-venturer independent contractor or otherwise) , alone, in association with or on behalf of any individualother person, firm, corporation, firm, association, partnership, joint venture or other business entityorganization:
(a) anywhere in the Northeast United States of America (i.e., the District of Columbia, the States of Virginia, West Virginia, Maryland, Delaware, Pennsylvania, New Jersey, New York, Connecticut, Massachusetts, New Hampshire, Rhode Island, Vermont and Maine), engage or participate in, or assist, advise or be connected with (including as an employee, owner, partner, shareholder, member, officer, director, advisor, consultant, agent or (without limitation by the specific enumeration of the foregoing) otherwise), or permit his name to be used by or render services for, any person or entity engaged in a Competing Business (as herein defined);
(b) take any action in connection with a Competing Business which competes with respect might divert from the Company or any of its affiliates any opportunity which would be (at the time of such action) within the scope of the Company’s or any such affiliate’s business;
(c) solicit or attempt to induce any services person or products entity (including referral sources, agents and brokers) who is or has been a customer or business relation of the Company at any time during (i) the Employment Period or (ii) the Restricted Period, to purchase Competing Products or services (as herein defined) from any person or entity (other than the Company);
(d) solicit or attempt to induce any person or entity who is or has been a client or other business relation of the Company at any time during (i) the Employment Period or (ii) during the Restricted Period, to cease doing business with the Company;
(e) take any actions which are either offered calculated to persuade any person or are being developed by entity who is a director, manager, officer, employee, representative or agent of the Company; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) Company or any of any class of securities of any publicly held corporation in competition its affiliates to terminate their association with the Company whose securities are traded on or such affiliates; or
(f) solicit or hire any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and during the Termination Periodperson or entity who is or was a director, Executive shall notmanager, directly officer, employee, representative or indirectly, (i) induce or attempt to influence any employee agent of the Company or any of its affiliates to leave its employ, (ii) aid or agree to aid perform services for any competitor, customer or supplier of entity other than the Company and its affiliates. As used throughout this Agreement, a “Competing Business” shall mean a business which engages, in any attempt to hire any person who shall have been employed whole or in part, in the business of or the rendering of services which are directly competitive with products and services marketed and provided by the Company within during the twelve (12) month period preceding such requested aidRestricted Period. As used herein, or (iii) induce or attempt the services, subject to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term foregoing provisions of this AgreementSection 5.1, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose are collectively referred to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreementherein as “Competing Services”.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 2 contracts
Samples: Employment Agreement (Wave2Wave Communications, Inc.), Employment Agreement (Wave2Wave Communications, Inc.)
Restrictive Covenants. 5.1 Executive acknowledges Employee understands the global nature of Employer’s businesses and the effort Employer and its affiliates undertake to develop and protect their business and their competitive advantage. Accordingly, Employee agrees that (i) he has a major responsibility for the operation, administration, development scope and growth duration of the Company's business, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained restrictions described in this Section 5 Agreement are essential reasonable and necessary to protect the legitimate business interest interests of the Company and Employer. Employee further agrees that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term period of this Agreement his employment and for a period of twelve (12) months two years following the a termination of this Agreement (the "Termination Period"Employee’s employment pursuant to Section 5(a), Executive 5(b), 5(c), 5(d), 7 or 8 hereof, Employee shall not:
(a) singly, jointly, or in any other capacity, in a manner that contributes to any research, technology, development, account, trading, marketing, promotion, or sales and that relates to Employee’s service with Employer or an affiliate, directly or indirectlybeneficially, compete manage, join, participate in the management, operation or control of, or work for (as an employee, consultant or independent contractor), or permit the use of his name by, or provide financial or other assistance to, or be connected in any manner with, any options exchange or alternative trading system that directly competes with respect Employer, without the express written approval of the Chief Executive Officer and Chairman of the Board;
(b) provide any service or assistance that (1) is of the general type of service or assistance provided by Employee to Employer, (2) relates to any technology, account, product, project or piece of work, with which Employee was involved during his employment with Employer, and (3) contributes to causing an entity to come within the definition described in paragraph (a) above;
(c) solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is a then current employee of Employer (or products was an employee of Employer during the Company which are either offered year preceding such solicitation), nor solicit any of Employer’s then current employees (or are being developed an individual who was employed by or engaged by Employer during the Companyyear preceding such solicitation) to terminate employment or an engagement with Employer, nor agree to hire any then current employee (or an individual who was an employee of Employer during the year preceding such hire) of Employer into employment with himself or any company, individual or other entity; or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity
(whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwised) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Company; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and during the Termination Period, Executive shall not, directly or indirectly, (i) induce indirectly divert or attempt to influence divert from Employer any employee business in which Employer has been actively engaged during the Term, nor interfere with the relationships of the Company to leave Employer with its employ, (ii) aid or agree to aid any competitor, customer or supplier sources of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 2 contracts
Samples: Employment Agreement (CBOE Holdings, Inc.), Employment Agreement (CBOE Holdings, Inc.)
Restrictive Covenants. 5.1 Executive acknowledges In order to assure that (i) he has a major responsibility for Nations will realize the operation, administration, development and growth benefits of the Company's businesstransactions contemplated hereby, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customersthe Shareholder agree that he, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as followsnot:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and (a) for a period of twelve five (125) months years following the termination of this Agreement (the "Termination Period"), Executive shall notClosing, directly or indirectly, compete with respect to any services alone or products of the Company which are either offered or are being developed by the Company; or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, ownerjoint venturer, officer, director, executiveemployee, principalconsultant, agent, creditorindependent contractor, trusteeor security holder, consultantof any company or business, co-venturer engage in, or otherwise) with any individualfinance, corporation, firm, association, partnership, joint venture or other business entity, which competes provide financial assistance with respect to, any business activity in the business of renting, selling, leasing, distributing, servicing or repairing new or used equipment, spare parts and related supplies to industrial, manufacturing, or construction customers (the "Equipment Business") in any services county in any state in the United States in which NationsRent, Inc. or products any of its subsidiaries, successors, or assigns (collectively, the Company which are either offered or are being developed by "Nations Companies") conducts such business at the Companytime such person commences to engage in such activity; provided, however, that Executive may own, solely as an investment, not more the beneficial ownership of less than one five percent (15%) of any class of securities of any publicly held corporation in competition with the Company whose entity having a class of equity securities are actively traded on any a national securities exchange or over-the-counter market shall not be deemed, in and of itself, to violate the United States of America.
5.1.2 During the Term prohibitions of this Agreement and during Section;
(b) for a period of five (5) years following the Termination Period, Executive shall notClosing, directly or indirectly, (i) induce any customer acquired hereunder or attempt any other customer of the Nations Companies to influence patronize any business which is directly or indirectly in competition with the Equipment Business conducted by any of the Nations Companies; (ii) canvass, solicit or accept from any Person which is a customer of the Equipment Business conducted by any of the Nations Companies, any such competitive business; or (iii) request or advise any customer of the Equipment Business conducted by any of the Nations Companies to withdraw, curtail or cancel any such customer's business with the Nations Companies or their successors;
(c) for a period of five (5) years following the Closing, directly or indirectly, employ any person who was employed by the Nations Companies, within six (6) months prior to the date being employed by the Nations Companies, or in any manner seek to induce any employee of the Company Nations Companies to leave its employhis or her employment; and
(d) at any time following the Closing Date, (ii) aid directly or agree to aid indirectly, in any competitorway utilize, customer disclose, copy, reproduce or supplier retain in his possession any of the Company in Companies' proprietary rights or records acquired hereunder, including, but not limited to, any attempt to hire any person who shall have been employed by customer lists. The parties acknowledge that should Nations vacate the Company within the twelve (12) month period preceding such requested aidfacilities listed at Section 5.9, or (iii) induce or attempt either of them, the Shareholder may lease such premises to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with Person including a competitor of Nations. The Company and the Shareholder agree and acknowledge that the restrictions contained in this Section are reasonable in scope and duration, and are necessary to protect the Nations Companies. The Company in Company's business.
5.1.3 During and the Term Shareholder agree and acknowledge that any breach of this AgreementSection will cause irreparable injury to the Nations Companies and upon any breach or threatened breach of any provision of this Section, the Termination PeriodNations Companies shall be entitled to injunctive relief, if applicablespecific performance or other equitable relief, and thereafterwithout the necessity of posting bond; provided, Executive however, that this shall not in no way limit any other than in remedies which the performance Nations Companies may have as a result of his duties disclose such breach, including the right to anyone any information about the affairs of the Company, includingseek monetary damages. The parties hereto agree that Nations may assign, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice foregoing restrictive covenants to any other rights and remedies which may be available at law or in equitysuccessor to Nations's Equipment Business.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive acknowledges that (ia) he has a major responsibility for During the operation, administration, development term of his Employment the Employee shall devote his best efforts and growth full time to advance the interests of the Company's business.
(b) During the tern of employment, (ii) his work for Employee shall not compete with the Company has brought him and will continue directly or indirectly, as a partner, proprietor, stockholder, officer, director, principal, agent, employee or consultant, with respect to bring him into close contact any person, firm, corporation or other organization, or engage in any business which is the same as, similar to, or in general competition with confidential information of the Company and its customersbusiness conducted by the Company, except as provided hereinafter, if at all. In furtherance of, and (iii) without in any way limiting the agreements and covenants contained in contents of this Section 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordinglyrestrictive clause, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of this Agreement (the "Termination Period"), Executive Employee shall not, directly or indirectly, compete during the term of his employment with respect the Company:
(i) request any Company customer to any services curtail or products of the Company which are either offered cancel their present or are being developed by future business with the Company; or
(ii) solicit, without limiting the generality of the foregoing, be canvas or becomeaccept, or agree authorize any other person to be solicit, canvas or becomeaccept, interested in from any past, or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products present customers of the Company any business for any other person, firm or corporation engaged in any business which are either offered is the same as, similar to or are being developed in general competition with the business of the Company;
(c) The Employee shall have no right, title or interest in any copies, pictures, duplicates, facsimiles or other reproductions or recordings or any abstracts or summaries of any reports, studies, memoranda, correspondence, manuals, customer lists, records, formulas, plans or other written, printed or otherwise recorded material of any kind whatever related to the business of the Company or any equipment or facilities belonging to the Company, which may be produced or created by or come into the possession of the Employee in the course of his employment with the Company. The Employee further agrees that without the prior written consent of the Company's Board he will not remove or cause to be removed any such material except personal material unrelated to the business of the Company from any premises of the Company, and that he will surrender all such material to the Company immediately upon the termination of his employment or at any time prior thereto upon request of the Company, except material which is not proprietary or unique or having only nominal value.
(d) The Employee will promptly disclose and assign to the Company any and all unique and proprietary information and improvements, discoveries, ideas and inventions (whether or not patentable) made or conceived or possessed by the Employee while employed by the Company; provided, howevereither alone or in conjunction with others, whether or not made or conceived at the request of or upon the suggestion of the Company, which directly relates to the Company's business. However, any monies received from publications, honors or prizes shall be retained by Employee, his heirs or assigns, provided that Executive may own, solely as an investment, such publications do not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of Americaviolate this Agreement.
5.1.2 During (e) The Employee will not, without the Term prior written approval of this Agreement and during the Termination PeriodBoard of Directors, Executive which shall notnot be unreasonably withheld, directly or indirectly, (i) induce use, disseminate, disclose, lecture upon, or attempt to influence publish articles concerning the company's present or proposed products or projects, trade practices or any employee of the Company to leave its employ, (ii) aid other unique or agree to aid any competitor, customer proprietary information which presently exists or supplier of the Company in any attempt to hire any person who shall have been employed is established or developed hereafter by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive (f) Nothing herein shall not other than be construed in a manner which limits action taken by Employee in the performance normal and proper execution of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreementduties.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive acknowledges that (i) he or she has a major responsibility for the operation, administration, development and growth of the Company's business, (ii) his or her work for the Company has brought him or her and will continue to bring him or her into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section Paragraph 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 (a) Except as otherwise provided for in this Agreement, during the Term of this Agreement and and, if this Agreement is terminated for a period of twelve any reason during the Term, for eighteen (1218) months following the such date of termination of this Agreement (the "Termination Period"), the Executive shall not, directly or indirectly, compete with respect to any services or products of the Company which are either offered or are being developed by the Company; or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executiveExecutive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Company; provided, however, that the Executive may own, solely as an investment, not more than one five percent (15%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America, and may retain his or her ownership interest in those entities referred to in Subparagraph 4.1.
5.1.2 (b) During the Term term of this Agreement and and, if applicable, during the Termination Period, the Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve one (121) month year period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 (c) During the Term of this Agreement, the Termination Period, if applicable, and thereafter, the Executive shall not other than in the performance of his or her duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall the Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 (d) Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or her or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that which he or she may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 5.3 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive acknowledges that (ia) he has a major responsibility for the operation, administration, development and growth In consideration of the Company's business, (ii) his work for the Company has brought him payments and will continue to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for benefits set forth in this Agreement, during the Term of this Agreement period commencing on the Termination Date and for a period of twelve (12) months following ending on December 31, 2003, the termination of this Agreement (the "Termination Period"), Executive shall not, directly or indirectly, alone, or as an employee, agent, advisor, salesman, independent contractor, lender, consultant, owner, partner, joint venturer, officer, director or stockholder or in any other capacity, enter into, engage in, plan, organize, aid, assist, own, manage, operate, control, participate in, become employed by, consult with, perform services for, obtain a material financial or proprietary interest in, or otherwise become associated at any capacity with any business or person that might be deemed to compete with or be deemed to be setting up to compete with the Company, GGC and/or any of their subsidiaries ("Owning Entity") (i) within one hundred fifty (150) miles of any golf course managed by the Company or GGC or owned by any Owning Entity, and (ii) in any line of business that is substantially the same as any line of business described in clause (i) and (ii) of Article III of GGC's Amended and Restated Certificate of Incorporation.
(b) In consideration of the payments and benefits set forth in this Agreement, during the period commencing on the Termination Date and ending on December 31, 2003, the Executive shall not (i) solicit business on behalf of the Executive or any other person from any client or customer of the Company or GGC, or otherwise directly or indirectly divert or interfere with or attempt to divert or interfere with the business or the clients or customers of the Company or GGC or (ii) directly or indirectly hire, recruit, solicit or induce, or attempt to induce, an employee or employees of the Company or GGC to terminate their employment with, or otherwise cease their relationship with, the Company or GGC, as the case may be.
(c) The Executive acknowledges and agrees that the breach of the provisions of this Section 5 will cause irreparable injury to the Company and GGC, inadequately compensable in damages. Accordingly, in addition to such other rights and remedies the Company and/or GGC may have under this Agreement, at law or in equity with respect to any services breach or products of the Company which are either offered or are being developed by the Company; or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Company; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and during the Termination Period, Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term threatened breach of this Agreement, the Termination Period, if applicable, Company and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company GGC shall be considered a "trade secret" for entitled to injunctive relief against the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation breach of any of the provisions of this Section 5, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and GGC and that money damages will not provide an adequate remedy to the Company and GGC. The Company, GGC and the Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 5 are fair and reasonable in light of all of the facts and circumstances of the relationship between the Company, GGC and the Executive and the Executive hereby expressly waives any objection to or defense in respect of the geographical scope and/or duration of the restriction on competition contained in this Section 5. The Executive acknowledges and agrees that the scope and duration of this restriction is reasonable and warranted in order to protect the Company's and GGC's legitimate business interests and rights and that the Executive's experience and capabilities are such that the Executive will not be prevented from earning a livelihood in the Executive's area of expertise as a result of the limited restrictions provided herein. In furtherance of and not in derogation of the provisions of this Section 5, the Company shall have no adequate remedy at law Company, GGC and shall therefore be entitled the Executive agree that in the event that, notwithstanding the foregoing, a court should decline to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenantsprovisions of this Section 5, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or provisions shall be deemed to be modified to restrict the area covered therebyExecutive's competition with the Company and GGC to the maximum extent, the parties hereto agree that in time, geography and scope, which the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be find enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Samples: Termination and Release Agreement (Gotham Golf Corp)
Restrictive Covenants. 5.1 Executive acknowledges that (i) he has a major responsibility for the operation, administration, development and growth of the Company's business, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 (a) Except as otherwise provided for in this Agreement, during the Term of this Agreement and and, if this Agreement is terminated for a period of twelve any reason during the Term, for six (126) months following the such date of termination of this Agreement (the "Termination Period"), the Executive shall not, directly or indirectly, compete with respect to any services or products of the Company which are either offered or are being developed by the Company; or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executiveExecutive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Company; provided, however, that the Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America, and may retain his ownership interest in those entities referred to in Subparagraph 4.1.
5.1.2 (b) During the Term term of this Agreement and and, if applicable, during the Termination Period, the Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve one (121) month year period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 (c) During the Term of this Agreement, the Termination Period, if applicable, and thereafter, the Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall the Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of 5 such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Samples: Employment Agreement (Biomerica Inc)
Restrictive Covenants. 5.1 Executive acknowledges that (i) he has a major responsibility for the operation, administration, development and growth of the Company's business, (ii) the Company's business has become national in scope, (iii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iiiiv) the agreements and covenants contained in this Section 5 Subsection 5.1 are essential to protect the business interest interests of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of this Agreement (the "Termination Period"), Executive shall not, directly or indirectly, compete with respect to any services or products of the Company which are either offered or are being developed by the CompanyCompany as of the date of termination; or, without limiting the generality of the foregoing, be by or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executiveExecutive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the CompanyCompany as of the date of termination; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and during the and, for one year thereafter ("Termination Period"), Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve one (121) month year period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, Period and any time thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the confidential or proprietary affairs of the Company, including, including without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section breaches Subsection 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5Subsection 5.1.1, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of or proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality 4 generally of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination determination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to of the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 (a) Executive acknowledges that (i) he has a major responsibility for the operation, administration, development and growth of the Company's business, (ii) the Company's business is or may become national or international in scope, (iii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iiiiv) the agreements and covenants contained in this Section 5 6 are essential to protect the business interest interests of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. AccordinglyFor purposes of this Section 6, references to the Company shall mean the Company and its Subsidiaries.
(i) During the Term and until the later of (x) three years following the date of termination of Executive's employment with the Company for any reason and (y) the end of the period during which the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during is entitled to receive the Term Extended Severance Benefit pursuant to Section 5(e)(iii) (disregarding any exercise of this Agreement and for a period of twelve (12rights under Section 5(f)(y)) months following the termination of this Agreement (the "Termination Period"), the Executive shall not, directly or indirectly, compete with respect to perform any services in the United States for any person or products entity other than the Company that is in the business, directly or indirectly, of providing health care services of the type the Company which are either offered is providing, or are being developed by of the Companytype the Executive is aware the Company is contemplating providing, at the time of the Executive's termination (the "Business"); or, without limiting the generality of the foregoing, be or become, become or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executiveemployee, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which entity that competes with respect to any services or products of in the Company which are either offered or are being developed by the CompanyBusiness; provided, however, that the Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any corporation that is publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of AmericaAmerica or reported on the National Association of Securities Dealers, Inc.'s Automated Quotation System.
5.1.2 (ii) During the Term of this Agreement and during the Termination Period, the Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company or its Subsidiaries to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company or its Subsidiaries in any attempt to hire any person who shall have been employed by the Company or its Subsidiaries within the twelve (12) month one-year period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company or its Subsidiaries during any portion of said period the Term or the Termination Period to transact business with a competitor of the Company in the Company's business.
5.1.3 (iii) During the Term of this AgreementTerm, the Termination Period, if applicable, Period and thereafter, the Executive shall not other than in the performance of his duties disclose to anyone any material information about the affairs of the CompanyCompany or its Subsidiaries, including, without limitation, including trade secrets, trade "know-how", ," inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, information which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by (c) If the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 6(b) (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, to any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, : The Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5Sections 6(b), the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 (d) If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination determination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 (e) The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive acknowledges 6.1 I hereby acknowledge and agree that (i) he has a major responsibility for during the operationperiod in which I am employed by, administrationor providing service to, development and growth of the Company's business, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information any member of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement Group and for a period of the twelve (12) months month-period following the my termination of this Agreement employment or service for any reason (including my resignation) (the "Termination “Restrictions Period"”), Executive I shall notcomply with the restrictive covenants set forth herein applicable to the Company Group.
6.1.1 During the Restrictions Period, I shall not anywhere in the Territory for myself, or through or on behalf of any other person or entity (other than the Company), whether as an officer, director, employee, equityholder, consultant or otherwise, as applicable: directly or indirectly, engage, participate, make any financial investment in, own any financial or beneficial interest in, operate, or become employed by or provide services to any business, corporation, firm, person, or other entity (together with its affiliates and subsidiaries, the “Competing Enterprise”) which is engaged, directly or indirectly, compete with respect to any services or products of the Company which are either offered or are being developed by the Company; or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Company; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation during my employment in competition with the Company whose securities are traded on any national securities exchange Group in the United States Business anywhere in the Territory; provided, in each case, that the aggregated gross revenue of America.the potentially Competing Enterprise for the last 12 months derived from all products, parts or services that are directly competitive to those products, parts or services offered by the Company Group (or proposed to be offered in the next 12 months) is greater than 5% of the consolidated net sales of the Company Group as reported in the audited financial statements of the Company Group for the then most recent fiscal year. Notwithstanding the foregoing, I shall not be prohibited from owning or acquiring securities in any publicly traded company as long as my ownership does not exceed 1% of such publicly traded company’s outstanding securities;
5.1.2 During the Term of this Agreement and during the Termination Period6.1.1.1 encourage, Executive shall notinduce, directly or indirectlyattempt to induce, (i) induce solicit or attempt to influence solicit, any employee employee, director, officer, associate, consultant, agent or independent contractor to terminate his or her employment with or engagement by the Company Group in order to become employed or engaged by any person, firm, corporation or other business enterprise other than a member of the Company to leave its employGroup, (ii) aid or agree to aid any competitor, customer or supplier except in the furtherance of the Company in any attempt to hire any person who shall have been my responsibility while I am employed by the Company within the twelve (12) month period preceding such requested aidGroup, or (iii) induce hire or retain, or attempt to influence hire or retain, any person employee, director, officer, associate, consultant, agent or business entity who was a customer or supplier independent contractor of the Company Group; provided, that nothing in this Non-Disclosure Agreement prohibits me from hiring an individual who responds to a job posting made available to the general public so long as I do not solicit or otherwise initiate such contact during the one year following termination of my employment or service; or
6.1.1.2 encourage, induce, attempt to induce, solicit or attempt to solicit, any portion of said period to transact business with a competitor customer, distributor, supplier, vendor, marketer or sponsor of the Company in Company's businessGroup to cease its customer, distributor, supplier, vendor, marketer or sponsor relationship with the Company Group.
5.1.3 During 6.1.2 The restrictions contained in this Section are necessary for the Term protection of the business and goodwill of the Company Group and are considered by me to be reasonable for such purpose. I acknowledge that a breach of any of the covenants contained in this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose Non-Disclosure Agreement may cause irreparable damage to anyone any information about the affairs of the Company, includingthe exact amount of which would be difficult to ascertain, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to and that the Company or is not generally known in the relevant trade, nor shall Executive make use of remedies at law for any such information for his own benefitbreach or threatened breach would be inadequate. Any techniqueAccordingly, method, process I agree that if I breach or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property threaten to breach any of the Company and shall not be used by him covenants contained in any way adverse to the Company's interests. Executive shall not deliverthis Non-Disclosure Agreement, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, to any other rights and remedies remedy which may be available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled (i) to enforce each such provision the extent permitted by temporary applicable law, to cease or permanent injunctive withhold any payments or mandatory relief obtained equity rights owed to me, whether in connection with my employment or otherwise, including, without limitation, any equity rights I am otherwise entitled to receive under the Stock Plan; and/or (ii) to institute and prosecute proceedings in any court of competent jurisdiction for specific performance and injunctive relief to prevent the breach or any threatened breach thereof without the necessity of proving damages, posting any bond or other security, security or a showing that monetary damages will not provide an adequate remedy. I further acknowledge that the restrictions and limitations set forth in this Non-Disclosure Agreement will not materially interfere with my ability to earn a living following the termination of my employment with the Company and that my ability to earn a livelihood without prejudice violating such restrictions is a material condition to any other rights my employment with the Company. I agree to disclose in advance the existence and remedies which may be available at law or in equity.
5.3 If any terms of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder restrictions and covenants contained in this Non-Disclosure
6.1.3 For purposes of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.Section:
Appears in 1 contract
Samples: Non Disclosure, Invention Assignment and Restrictive Covenant Agreement (Dorman Products, Inc.)
Restrictive Covenants. 5.1 Executive 6.1 Consultant acknowledges that (i) he has a major responsibility for the operation, administration, development and growth of the CompanyTHE COMPANY's businessbusiness is or may become national or international in scope, (ii) his work for the Company THE COMPANY has brought him and will continue to bring him into close contact with confidential information of the Company THE COMPANY and its customers, and (iii) the agreements and covenants contained in this Section 5 6.1 are essential to protect the business interest of the Company THE COMPANY and that the Company THE COMPANY will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive Consultant covenants and agrees as follows:
5.1.1 (a) Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of and, if this Agreement is terminated for any reason during the Term, for two (2) years following such date of termination (the "Termination Period"), Executive the Consultant shall not, directly or indirectly, compete with respect to any services or products of the Company THE COMPANY which are either offered or are being developed by THE COMPANY as of the Companydate of termination; or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executiveConsultant, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company THE COMPANY which are either offered or are being developed by THE COMPANY as of the Companydate of termination; provided, however, that Executive the Consultant may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company THE COMPANY whose securities are traded on any national securities exchange in the United States of America, and may retain his ownership interest in those entities referred to in Section 4.1 above.
5.1.2 (b) During the Term term of this Agreement and during and, the Termination Period, Executive Consultant shall not, directly or indirectly, (i) induce or attempt to influence any employee executive of the Company THE COMPANY to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company THE COMPANY in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aidTHE COMPANY, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company THE COMPANY during any portion of said period to transact business with a competitor of the Company THE COMPANY in Company's business.
5.1.3 (c) During the Term of this Agreement, the Termination Period, if applicable, Agreement and thereafter, Executive the Consultant shall not other than in the performance of his duties disclose to anyone any information about the affairs of the CompanyTHE COMPANY, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company THE COMPANY or is not generally known in the relevant trade, nor shall Executive the Consultant make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by 6.2 If the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive Consultant breaches, or threatens to commit a breach of Section 5.1 6.1 (the "Restrictive Covenants"), the Company THE COMPANY shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company THE COMPANY at law or in equity.
5.2.1 Executive (a) The Consultant shall account for and pay over to the Company THE COMPANY all compensation, profits, and other benefits, after taxes, which inure to ExecutiveConsultant's benefit which are derived or received by Executive the Consultant or any person or business entity controlled by Executive the Consultant resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.. 6.2
5.2.2 (b) Notwithstanding the provisions of subsection 5.2.1 6.2(a) above, Executive the Consultant acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 56.1, the Company THE COMPANY shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 6.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 6.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the CompanyTHE COMPANY's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive Xxxxxxxx acknowledges and agrees that (ia) through his past and continuing services to the Selling Entities and the Company, he has a major responsibility for the operation, administration, development will learn valuable trade secrets and growth of other proprietary information relating to the Company's business, ; (iib) his work for Xxxxxxxx'x services to the Company has brought him are unique in nature; (c) the Company's business is international in scope; and will continue (d) the Company would be irreparably damaged if Xxxxxxxx was to bring him into close contact with confidential information provide services to any person or entity in violation of the Company and its customers, and (iii) the agreements and covenants restrictions contained in this Section 5 are essential Agreement. Accordingly, as an inducement to protect the business interest of the Company and that the Company will not to enter into this Agreement but for such agreements and covenants. Accordinglyacquire substantially all of the operating assets of the Selling Entities, the Executive covenants and Xxxxxxxx agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, that during the Term of this Agreement and for a period the longer of twelve (12i) months following until October 5, 2002; or (ii) two years after the earlier of (x) Xxxxxxxx'x termination of this Agreement employment or (y) the expiration of the Term (such period being referred to herein as the "Termination Restricted Period"), Executive Xxxxxxxx shall not, directly or indirectly, compete with respect to either for himself or for any services other person or products entity, without the prior written consent of the Company which are either offered Company:
(a) anywhere in the United States or are being developed by the Company; orCanada, without limiting the generality of the foregoing, be engage or becomeparticipate in, or agree to assist, advise or be or becomeconnected with (including as an employee, interested in or associated withowner, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trusteeadvisor, consultant, co-venturer agent or (without limitation by the specific enumeration of the foregoing) otherwise) with ), or permit his name to be used by or render services for, any individualperson or entity engaged in, corporationor making plans to engage in, firm, association, partnership, joint venture or other a business entity, which that competes with respect the business conducted by, or proposed to be conducted by, the Company or its Affiliates (a "Competing Business");
(b) solicit, attempt to solicit, aid in the solicitation of or accept any services orders from any person or products entity who is or has been a customer of the Company or its Affiliates, at any time during the period beginning one year prior to the expiration of the Term through the Restricted Period, to purchase products or services from any person or entity which are either offered products or are being developed services could have been supplied or performed, as the case may be, by the CompanyCompany or its Affiliates (other than on behalf of the Company or its Affiliates);
(c) solicit, attempt to solicit or aid in the solicitation of any person or entity who is or has been a customer, supplier, licensor, licensee or person or entity having any other business relationship with the Company or any of its Affiliates, at any time during the period beginning one year prior to the expiration of the Term through the Restrictive Period, to cease doing business with or alter its business relationship with the Company or its Affiliates; or
(d) solicit or hire any person or entity who is a director, officer, employee, independent contractor or agent of the Company or any of its Affiliates to perform services for any person or entity other than the Company or its Affiliates or to terminate his or her employment with the Company or its Affiliates; provided, however, that Executive Xxxxxxxx may ownemploy any director, solely as an investmentofficer, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and during the Termination Periodemployee, Executive shall not, directly independent contractor or indirectly, (i) induce or attempt to influence any employee agent of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event its Affiliates for services of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenantspersonal nature, as to breaches of long as such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, services are not for this purpose, severable into diverse and independent covenantsa Competing Business.
Appears in 1 contract
Samples: Asset Purchase Agreement (Total Control Products Inc)
Restrictive Covenants. 5.1 Executive Xxxxxxxx acknowledges and agrees that (ia) through his past and continuing services to the Selling Entities and the Company, he has a major responsibility for the operation, administration, development will learn valuable trade secrets and growth of other proprietary information relating to the Company's business, ; (iib) his work for Priester's services to the Company has brought him are unique in nature; (c) the Company's business is international in scope; and will continue (d) the Company would be irreparably damaged if Xxxxxxxx was to bring him into close contact with confidential information provide services to any person or entity in violation of the Company and its customers, and (iii) the agreements and covenants restrictions contained in this Section 5 are essential Agreement. Accordingly, as an inducement to protect the business interest of the Company and that the Company will not to enter into this Agreement but for such agreements and covenants. Accordinglyacquire substantially all of the operating assets of the Selling Entities, the Executive covenants and Xxxxxxxx agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, that during the Term of this Agreement and for a period the longer of twelve (12i) months following until October 5, 2002; or (ii) two years after the earlier of (x) Priester's termination of this Agreement employment or (y) the expiration of the Term (such period being referred to herein as the "Termination Restricted Period"), Executive Xxxxxxxx shall not, directly or indirectly, compete with respect to either for himself or for any services other person or products entity, without the prior written consent of the Company which are either offered Company:
(a) anywhere in the United States or are being developed by the Company; orCanada, without limiting the generality of the foregoing, be engage or becomeparticipate in, or agree to assist, advise or be or becomeconnected with (including as an employee, interested in or associated withowner, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trusteeadvisor, consultant, co-venturer agent or (without limitation by the specific enumeration of the foregoing) otherwise) with ), or permit his name to be used by or render services for, any individualperson or entity engaged in, corporationor making plans to engage in, firm, association, partnership, joint venture or other a business entity, which that competes with respect the business conducted by, or proposed to be conducted by, the Company or its Affiliates (a "Competing Business");
(b) solicit, attempt to solicit, aid in the solicitation of or accept any services orders from any person or products entity who is or has been a customer of the Company or its Affiliates, at any time during the period beginning one year prior to the expiration of the Term through the Restricted Period, to purchase products or services from any person or entity which are either offered products or are being developed services could have been supplied or performed, as the case may be, by the CompanyCompany or its Affiliates (other than on behalf of the Company or its Affiliates);
(c) solicit, attempt to solicit or aid in the solicitation of any person or entity who is or has been a customer, supplier, licensor, licensee or person or entity having any other business relationship with the Company or any of its Affiliates, at any time during the period beginning one year prior to the expiration of the Term through the Restrictive Period, to cease doing business with or alter its business relationship with the Company or its Affiliates; or
(d) solicit or hire any person or entity who is a director, officer, employee, independent contractor or agent of the Company or any of its Affiliates to perform services for any person or entity other than the Company or its Affiliates or to terminate his or her employment with the Company or its Affiliates; provided, however, that Executive Xxxxxxxx may ownemploy any director, solely as an investmentofficer, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and during the Termination Periodemployee, Executive shall not, directly independent contractor or indirectly, (i) induce or attempt to influence any employee agent of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event its Affiliates for services of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenantspersonal nature, as to breaches of long as such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, services are not for this purpose, severable into diverse and independent covenantsa Competing Business.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive Employee acknowledges and agrees that (i) he has a major responsibility for the operation, administration, development and growth as an employee of the Company he shall possess and learn valuable trade secrets and other proprietary information relating to the Company's ’s business, (ii) his work for Employee’s services to the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customersare unique in nature, and (iii) the agreements Company’s business is national in scope, and covenants (iv) the Company may be irreparably damaged if the Employee were to provide services to any person or entity in violation of the restrictions contained in this Section 5 are essential to protect the business interest of Agreement. Accordingly, as an inducement for the Company and that the Company will not to enter into this Agreement but for such agreements and covenants. AccordinglyAgreement, the Executive covenants and Employee agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, that during the Term of this Agreement period that he is employed by the Company and for a period of twelve one (121) months following year thereafter or for the termination of this Agreement period during which the Company continues to pay the Base Salary pursuant to Section 3.3, whichever is longer (such period being referred to herein as the "Termination “Restricted Period"”), Executive Employee shall not, directly or indirectly, compete with respect to any services or products of the Company which are either offered or are being developed by the Company; or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partnerprincipal, shareholder, owneragent, officer, director, executive, principal, agent, creditor, trusteeemployee, consultant, co-venturer independent contractor or otherwise) , alone, in association with or on behalf of any individualother person, firm, corporation, firm, association, partnership, joint venture or other business entityorganization:
(a) anywhere in the Northeast United States of America (i.e., the District of Columbia, the States of Virginia, West Virginia, Maryland, Delaware, Pennsylvania, New Jersey, New York, Connecticut, Massachusetts, New Hampshire, Rhode Island, Vermont and Maine), engage or participate in, or assist, advise or be connected with (including as an employee, owner, partner, shareholder, member, officer, director, advisor, consultant, agent or (without limitation by the specific enumeration of the foregoing) otherwise), or permit his name to be used by or render services for, any person or entity engaged in a Competing Business (as herein defined);
(b) take any action in connection with a Competing Business which competes with respect might divert from the Company or any of its affiliates any opportunity which would be (at the time of such action) within the scope of the Company’s or any such affiliate’s business;
(c) solicit or attempt to induce any services person or products entity (including referral sources, agents and brokers) who is or has been a customer or business relation of the Company at any time during (i) the Employment Period or (ii) the Restricted Period, to purchase Competing Products or services (as herein defined) from any person or entity (other than the Company);
(d) solicit or attempt to induce any person or entity who is or has been a client or other business relation of the Company at any time during (i) the Employment Period or (ii) during the Restricted Period, to cease doing business with the Company;
(e) take any actions which are either offered calculated to persuade any person or are being developed by entity who is a director, manager, officer, employee, representative or agent of the Company; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) Company or any of any class of securities of any publicly held corporation in competition its affiliates to terminate their association with the Company whose securities are traded on or such affiliates; or
(f) solicit or hire any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and during the Termination Periodperson or entity who is or was a director, Executive shall notmanager, directly officer, employee, representative or indirectly, (i) induce or attempt to influence any employee agent of the Company or any of its affiliates to leave its employ, (ii) aid or agree to aid perform services for any competitor, customer or supplier of entity other than the Company and its affiliates. As used throughout this Agreement, a “Competing Business” shall mean a business which engages, in any attempt to hire any person who shall have been employed by whole or in part, in the Company within the twelve (12) month period preceding such requested aidbusiness of, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier the rendering of services which are directly competitive with products and services marketed and provided by, the Company during any portion of said period the Restricted Period. As used herein, the services, subject to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term foregoing provisions of this AgreementSection 5.1, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose are collectively referred to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreementherein as “Competing Services”.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Samples: Employment Agreement (Wave2Wave Communications, Inc.)
Restrictive Covenants. 5.1 Executive Employee acknowledges and agrees that (i) he has a major responsibility for the operation, administration, development and growth through his position as Senior Vice President of the Company's business, he will learn and have access to valuable trade secrets and other proprietary information relating to the Business, (ii) his work for Employee's services to the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customersare unique in nature, and (iii) the agreements Company's Business is international in scope, and covenants contained in this Section 5 are essential to protect the business interest of (iv) the Company and that would be irreparably damaged if Employee were to provide services in violation of this Agreement. Accordingly, as an inducement to the Company will not to enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, Employee agrees that during the Employment Term and, except in the case of this Agreement and a termination of employment by the Company without cause pursuant to Section 11(b) hereof, for a period of twelve an additional eighteen (1218) months following the termination of this Agreement thereafter (such period being referred to herein as the "Termination Restricted Period"), Executive shall notneither Employee nor any Affiliate of Employee (as defined below) shall, directly or indirectly, compete with respect to either for himself or for any services other person, firm, corporation, trust or products of the Company which are either offered other entity:
(a) engage or are being developed by the Company; or, without limiting the generality of the foregoing, be or becomeparticipate in, or agree to assist, advise or be or becomeconnected with (including as an employee, interested in or associated withowner, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trusteeadvisor, consultant, co-venturer agent or otherwise) with ), or permit his name to be used by or render services for, any individualperson or entity engaged in a Competing Business (as hereinafter defined), corporation, firm, association, partnership, joint venture anywhere in the United States of America or Canada or any other business entity, location in which competes with respect to any services or products of the Company which are either offered or are being developed by the Companyis then doing business; provided, however, that Executive may ownnothing in this Agreement shall prevent Employee from acquiring or owning, solely as an a passive investment, not more than one up to two percent (12%) of any class of the outstanding voting securities of any an entity engaged in a Competing Business which are publicly held corporation in competition with the Company whose securities are traded on any recognized national securities exchange market;
(b) take any action in connection with a Competing Business which might divert from the United States Company or an Affiliate of America.the Company any opportunity which would be within the scope of the Company's or such Affiliate's then business;
5.1.2 During the Term of this Agreement and during the Termination Period, Executive shall not, directly (c) solicit or indirectly, attempt to solicit any person or entity who is or has been (i) induce a customer of the Company at any time (A) up to the date hereof or attempt (B) during the Restricted Period to influence purchase Competing Products or Services (as herein defined) from any person or entity (other than the Company), or (ii) a customer, supplier, licensor, licensee or other business relation of the Company at any time (A) up to the date hereof or (B) during the Restricted Period to cease doing business with the Company, or
(d) solicit or hire any person or entity who is a director, officer, employee or agent of the Company or any Affiliate of the Company to leave its employ, (ii) aid or agree to aid perform services for any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary informationits Affiliates.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 1. Executive acknowledges that (i) he has a major responsibility for the operationportfolio management and strategies, administrationempirical modeling, development control of accounting systems and growth procedures, and preparation of financial statements for the Company's business, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 E.1 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 a. Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of and, if this Agreement is terminated under Section F.3 or F.5 during the Term, for two (2) years following such date of termination (the "Termination Period"), the Executive shall not, directly or indirectly, compete with respect to any services or products of the Company which are either offered or are being developed by the CompanyCompany as of the date of termination; or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executiveExecutive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the CompanyCompany as of the date of termination; provided, however, that the Executive may own, solely as an investment, not more than one two percent (12%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America.
5.1.2 b. During the Term term of this Agreement and and, if applicable, during the Termination Period, the Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee executive of the Company to leave its employ, or (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 c. During the Term of this Agreement, the Termination Period, if applicable, and thereafter, the Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall the Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by 2. If the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 E.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 a. The Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by the Executive or any person or business entity controlled by the Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.,
5.2.2 b. Notwithstanding the provisions of subsection 5.2.1 a. above, the Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5E.1, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 3. If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 4. The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Samples: Employment Agreement (Cypress Financial Services Inc)
Restrictive Covenants. 5.1 Executive acknowledges that (i) he has a major responsibility for the operation, administration, development and growth of the Company's business, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest interests of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 5.1.a Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of this Agreement (the "Termination Period"), Executive shall not, directly or indirectly, within any state, province or other political subdivision of the United States or any other country in which the Company is conducting business, compete with respect to any services or products of the Company which are either offered or are being developed by the Company (the "Company; 's Business"), or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executiveemployee, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with ), any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Company's Business; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) percent of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of Americaowned corporation.
5.1.2 During 5.1.b During, and for one year after, the Term of this Agreement and during the Termination PeriodTerm, Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier suppliers of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month one year period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 5.1.c During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, 5.1 (the "Restrictive Covenants") the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, damages or posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination determination shall have the power to reduce the duration and/or scope and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions jurisdictions, within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive acknowledges that a. During the period beginning on the Effective Date and ending on April 30, 2018 (i) he has a major responsibility for the operation“Restricted Period”), administration, development and growth each member of the Company's businessOP Group agrees that it will not, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company cause its Affiliates and Representatives acting on its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest of the Company and that the Company will behalf not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of this Agreement (the "Termination Period"), Executive shall notto, directly or indirectly, compete with respect to any services or products without the prior written consent of the Company which are either offered Company’s Board of Directors or are being developed by the Company; oran authorized committee thereof(the “Board”):
(1) acquire, without limiting the generality of the foregoing, be or becomeoffer to acquire, or agree to be acquire, directly or becomeindirectly, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer by purchase or otherwise, (A) with any individual, corporation, firm, association, partnership, joint venture voting securities or other business entity, which competes with respect direct or indirect rights to acquire any services voting securities or products (B) any assets or debt securities: (i) of the Company which are either offered or are being developed by the Company; providedany subsidiary thereof, however, that Executive may own, solely as an investment, not more than one percent or (1%ii) of any person in control of the Company, or (iii) of any successor to any thereof; provided that this Section 6(a)(1) shall not apply to issuances of securities to all holders of a class of securities of any publicly held corporation in competition with the Company whose held by such member of the OP Group, whether as a dividend, in exchange for outstanding securities are traded on or otherwise; and provided further that if the Company sells equity securities, excluding issuances of equity securities to directors, officers or employees of the Company under the Company’s existing benefit plans, whether in a registered public offering or otherwise, the restrictions included in this section 6(a)(1) shall terminate according to their terms and shall be without further force or effect;
(2) except with respect to a transaction permitted under paragraph (1) above, propose or publicly announce or otherwise disclose an intent to propose or enter into or agree to enter into, singly or with any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and during the Termination Period, Executive shall notother person, directly or indirectly, (ix) induce any form of business combination or attempt acquisition or other transaction relating to influence any employee the acquisition of a material amount of assets or securities of the Company to leave or any of its employsubsidiaries, (iiy) aid any form of restructuring, recapitalization or agree similar transaction with respect to aid any competitor, customer or supplier of the Company in or any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aidof its subsidiaries, or (iiiz) induce any form of tender or attempt to influence any person or business entity who was a customer or supplier of exchange offer for the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs common stock of the Company, includingwhether or not such transaction involves a change of control of the Company;
(3) engage in, without limitationor advise, trade secretsencourage, trade "know-how"or influence any person with respect to, inventionsany “solicitation” of “proxies” or “consents” or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents, customer listsin each case, business plans, operational methods, pricing policies, marketing plans, sales plans, identity with respect to the election or removal of suppliers or customers, sales, profits or other financial information, which is confidential to directors the Company or is not generally known otherwise in a manner adverse to any recommendation or proposal of the relevant tradeBoard; provided, nor shall Executive make use that the issuing of any statement, orally or in writing, that only sets forth the position of any such information for his own benefit. Any technique, method, process or technology used by member of the Company OP Group and the reasons therefor shall not be considered a "trade secret" for the purposes violation of this AgreementSection 6(a)(3).
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive acknowledges (a) For a period of five (5) years following the Closing Date (the “Restricted Period”), no Seller or Owner will, directly or indirectly (individually or in combination with an Affiliate or immediate family member of such party), sell or provide products or services to any Customer that are (iy) he has a major responsibility for the operation, administration, development and growth same as or substantially similar to the products or services provided by the Company as of the Company's businessClosing Date or within one year prior to the Closing Date, or (iiz) his work for competitive with the products or services provided by the Company has brought him and will continue to bring him into close contact with confidential information as of the Company and its customersClosing Date or within one year prior to the Closing Date (collectively, and (iii) the agreements and covenants “Competitive Services”), or assist any other Person in providing Competitive Services. For purposes of this Section 1(a), “assist any other Person” includes, but is not limited to, being an employee, independent contractor, consultant, advisor, shareholder, owner, Affiliate, partner, agent, investor, officer or director of such Person; provided that nothing contained in this Section 5 1 will prevent:
(i) an equity investment of not more than three percent (3%) in any Person whose securities are essential publicly traded and listed on a national stock exchange; or
(ii) an Owner from being employed directly by any Governmental Authority, other than any Customer, and provided, that, each Owner acknowledges and agrees that becoming employed by any Governmental Authority that is a Customer shall be deemed a violation of this Section 1(a).
(b) During the Restricted Period, no Seller or Owner will, directly or indirectly (individually or in combination with an Affiliate or immediate family member of such party), including by assisting any other Person to protect do any of the business interest of following:
(i) induce, solicit or attempt to induce or solicit any Customer to terminate or adversely modify such Customer’s Contracts or Government Contracts with the Company or otherwise interfere with, disrupt or attempt to interfere or disrupt, the relationship between the Company and that such Customer;
(ii) induce, solicit or attempt to induce or solicit for employment or other services, hire or retain as an employee, independent contractor or consultant:
(A) any Person who was employed by the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following immediately preceding the termination Closing Date and who was employed by the Company or any Affiliate thereof within six (6) months of the date of such solicitation, hiring, or retention; and
(B) any Person under contract as a consultant or independent contractor to the Company as of the Closing Date to terminate or adversely modify his, her or its business relationship with the Company or otherwise interfere with such relationship. For purposes of this Agreement (the "Termination Period"Section 1(b), Executive prohibited solicitation shall notnot include the placement of a general advertisement or other publication of general circulation of job opportunities or requests for the services of consultants and independent contractors which are not targeted at the Company’s employees, contractors or consultants.
(c) During the Restricted Period, no Seller or Owner will, directly or indirectlyindirectly (individually or in combination with an Affiliate or immediate family member of such party), compete including by assisting any other Person, interfere with respect or disrupt, or arrange to have any services other Person interfere with or products disrupt, any Person that was a vendor, supplier, distributor, agent or other service provider (not otherwise covered by Section 1(b)) of the Company which as of the #4774045v2 Closing Date or within one year prior to the Closing Date, for a purpose competitive with the products and services that are either offered sold or are being developed provided by the Company to any Customer as of the Closing Date.
(d) For purposes of Sections 1(a)-(c), “Customer” means any Person which, or for which, at any time during the twelve (12) months immediately preceding (and including) the Closing Date, directly or indirectly to include the end customer in the case where the direct Customer is a prime contractor to a Governmental Authority (i) contracted for or received products or services from the Company, (ii) received a bid or proposal by the Company for the provision of products or services by the Company; or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwiseiii) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered was actively preparing a bid or are being developed proposal for the provision of products or services by the Company. If the Company sells or provides products or services to a division, agency, sub-division, sub-agency, department, office, or other like smaller identifiable post within a customer (a “Division”) and if that Division was principally responsible for deciding to obtain those products or services, then only that Division shall be included within the term “Customer.” Notwithstanding anything to the contrary and for the avoidance of doubt, “Customer” shall include the Defense Health Agency and the United States Army Medical Research and Development Command (USAMRDC) including the Telemedicine & Advanced Technology and Research Center (TATRC).
(e) The Seller and each Owner will keep, and cause its representatives to keep, confidential and not directly or indirectly reveal, report, publish, disclose or transfer any Confidential Information (as defined below), and will not use such information for such party’s own benefit or for the benefit of any other Person (other than the Company and the Buyer, and their respective post-Closing Affiliates pursuant to the written request of the Buyer). As used in this Section 1(e), “Confidential Information” shall mean any information concerning the business and affairs of the Company, or the assets, including know-how, trade secrets, customer lists, details of customer or consultant contracts, pricing policies, operational methods and marketing plans or strategies, and any information disclosed to the Company by third parties to the extent that the Company has an obligation of confidentiality in connection therewith. The obligations set forth in this Section 1(e) will not apply to any information that would otherwise constitute Confidential Information but that the Seller or the Owners can prove (i) is known or available through other lawful sources not bound by a confidentiality agreement with the disclosing party; (ii) is or becomes publicly known or generally known in the industry through no fault or other wrongdoing of the Seller or the Owners or its and their representatives; or (iii) the Buyer or the Company agreed in writing that such Confidential Information could be disclosed. If the Seller or any Owner is requested or required pursuant to written or oral questions or requests for information or documents in any legal proceeding, judgment, interrogatory, civil investigation, or other similar process to disclose any Confidential Information, then, if legally permitted, the Seller or such Owner will notify the Buyer promptly of the request or requirement so that the Buyer may seek an appropriate protective order or waive compliance with the provisions of this Section 1(e). If, in the absence of a protective order or the receipt of a waiver hereunder, the Seller or such Owner is, on the advice of counsel, compelled to disclose any Confidential Information to any Governmental Authority, then the Seller or such Owner, as applicable, may disclose the Confidential Information to the Governmental Authority; provided, however, that Executive may ownthe disclosing Seller or Owner shall use its, solely his or her reasonable best efforts to obtain, at the #4774045v2 request and expense of the Buyer (to the extent such expenses are reasonable and documented), an order or other assurance that confidential treatment will be accorded to such portion of the Confidential Information required to be disclosed as an investmentBuyer shall designate. At the Closing, not more than one percent the Seller and each Owner shall deliver (1%or cause to be delivered) to the Buyer all Confidential Information (including the return of any class electronic media or device in which such information is contained). Notwithstanding the foregoing, the Seller and each Owner shall be entitled to retain copies of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement financial statements, Tax Returns, and during the Termination Period, Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee other records of the Company for periods through the Closing Date, which might reasonably be expected to leave its employbe helpful to the Seller and/or Owner in connection with Tax filings, (ii) aid Tax audits, obtaining or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aidguaranteeing loans, or (iii) induce other similar claims or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreementproceedings, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential subject to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreementconfidentiality obligations herein.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 6.1 Executive acknowledges that (i) he has a major responsibility for the operation, administration, development and growth of the Company's business, (ii) the Company's business has become international in scope, (iii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iiiiv) the agreements and covenants contained in this Section 5 Subsection 6.1 are essential to protect the business interest interests of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 6.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of this Agreement (the "Termination Period"), Executive shall not, directly or indirectly, compete with respect to any services or products of the Company which are either offered or are being developed by the CompanyCompany as of the date of termination; or, without limiting the generality of the foregoing, be by or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executiveExecutive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the CompanyCompany as of the date of termination; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of Americaexchange.
5.1.2 6.1.2 During the Term of this Agreement and during the Termination Periodand, for two years thereafter ("TERMINATION PERIOD"), Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve one (121) month year period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 6.1.3 During the Term of this Agreement, the Termination Period, if applicable, Period and any time thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the confidential or proprietary affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Samples: Employment Agreement (Mymetics Corp)
Restrictive Covenants. 5.1 Executive acknowledges In order to assure that (i) he has a major responsibility for United will realize the operation, administration, development and growth benefits of the Company's businessMerger, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information each of the Company Shareholders and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest of the Company and Principals agrees with United that the Company he or it will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as followsnot:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and (a) for a period of twelve (12) months five years following the termination of this Agreement (the "Termination Period"), Executive shall notEffective Time, directly or indirectly, compete with respect to any services alone or products of the Company which are either offered or are being developed by the Company; or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, ownerjoint venturer, officer, director, executiveemployee, principalconsultant, agent, creditorindependent contractor, trusteelender or security holder of any company or business, consultant, co-venturer or otherwiseengage in any business activity in the business of automobile transport by truck (the "Business") with in any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of state in the Company which are either offered or are being developed by the CompanyUnited States; provided, however, that Executive may ownthat, solely as an investment, not more the beneficial ownership of less than one five percent (1%) of the shares of stock of any corporation having a class of equity securities of any publicly held corporation in competition with the Company whose securities are actively traded on any a national securities exchange or over-the-counter market shall not be deemed, in and of itself, to violate the United States of America.
5.1.2 During the Term prohibitions of this Agreement and during Section;
(b) for a period of five years following the Termination Period, Executive shall notEffective Time, directly or indirectly, (i) induce any Person which is a customer of United, its subsidiaries, successors or attempt assigns (the "United Affiliates") to influence patronize any employee of business directly or indirectly in competition with the Company to leave its employ, Business conducted by the United Affiliates; (ii) aid canvass, solicit or agree to aid accept any competitor, such competitive business from any Person who is a customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, United Affiliates; or (iii) induce request or attempt advise any Person who has a business relationship with the United Affiliates to influence withdraw, curtail or cancel any such Person's business with such entity;
(c) for a period of five years following the Effective Time, directly or indirectly, employ, or knowingly permit any company or business directly or indirectly controlled by him, to employ, any person or business entity who was a customer or supplier employed by any of the Company during United Affiliates at or within the prior six months, or in any portion manner seek to induce any such person to leave his or her employment;
(d) at any time following the Effective Time, directly or indirectly, in any way utilize, disclose, copy, reproduce or retain in his possession the Company's proprietary rights or records, including, but not limited to, any of said period its customer lists; and
(e) except as otherwise required by law, and then only upon 10 days prior written notice to transact business with a competitor United, from and after the date of this Agreement in any way or to any Person, denigrate or derogate any of the Company United Affiliates, or any person who was at any time an officer or director of any of the United Affiliates, or services or procedures of or rendered by any of the United Affiliates, regardless of whether such denigrating or derogatory statements are true and regardless of whether the acts or omissions or purported acts or omissions on which such statements are based occurred before or after the date hereof. The Shareholders and the Principals acknowledge that the restrictions contained in Company's business.
5.1.3 During this Section are reasonable in scope and duration and are necessary to protect the Term United Affiliates after the Effective Time. The parties acknowledge that the breach of this AgreementSection will cause irreparable damage to the United Affiliates and upon breach of any provision of this Section, the Termination Period, if applicableUnited Affiliates, and thereaftereach of them, Executive shall not be entitled to injunctive relief, specific performance or other than equitable relief; provided, however, that, this shall in no way limit any other remedies which the performance of his duties disclose to anyone any information about the affairs of the CompanyUnited Affiliates may have, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential the right to seek monetary damages. United may assign the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice foregoing restrictive covenants to any other rights and remedies which may be available at law successor or in equityassignee of United.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive Employee acknowledges and agrees that (i) he has through his/her position as a major responsibility for the operation, administration, development and growth Senior Vice President of the Company's business, he/she will learn valuable trade secrets and other proprietary information relating to the Business, (ii) his work for Employee's services to the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customersare unique in nature, and (iii) the agreements Company's Business is international in scope and covenants (iv) the Company would be irreparably damaged if Employee were to provide services to any person or entity in violation of the restrictions contained in this Section 5 are essential Agreement. Accordingly, as an inducement to protect the business interest of the Company and that the Company will not to enter into this Agreement but for such agreements and covenants. AccordinglyAgreement, Employee agrees that during the Executive covenants and agrees as follows:
5.1.1 Except Employment Term and, except as otherwise provided for in this Agreement, during Sections 10(b) and 10(c) hereof or the Term last paragraph of this Agreement and Section 7, for a period of twelve an additional twenty-four (1224) months following the termination of this Agreement thereafter (such period being referred to herein as the "Termination Restricted Period"), Executive shall notneither Employee nor any Affiliate (as defined below in Section 8) of Employee shall, directly or indirectly, compete with respect to either for himself/herself or for any services other person or products entity:
(a) anywhere in the United States of America or Canada or any other location in which the Company which are either offered is then doing business, engage or are being developed by the Company; or, without limiting the generality of the foregoing, be or becomeparticipate in, or agree to assist, advise or be or becomeconnected with (including as an employee, interested in or associated withowner, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trusteeadvisor, consultant, co-venturer agent or otherwise) with ), or permit his/her name to be used by or render services for, any individual, corporation, firm, association, partnership, joint venture person or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Companyentity engaged in a Competing Business (as hereinafter defined); provided, however, that Executive may ownnothing in this Agreement shall prevent Employee from acquiring or owning, solely as an a passive investment, not more than one up to two percent (12%) of any class of the outstanding voting securities of any an entity engaged in a Competing Business which are publicly held corporation in competition with the Company whose securities are traded on any recognized national securities exchange market;
(b) take any action, in connection with a Competing Business, which might divert from the United States Company or an Affiliate of America.the Company any opportunity which would be within the scope of the Company's or such Affiliate's then business;
5.1.2 During the Term of this Agreement and during the Termination Period, Executive shall not, directly (c) solicit or indirectly, attempt to solicit any person or entity who is or has been (i) induce a customer of the Company at any time (A) up to the date hereof or attempt (B) during the Restricted Period to influence purchase Competing Products or Services (as herein defined) from any person or entity (other than the Company) or (ii) a customer, supplier, licensor, licensee or other business relation of the Company at any time (A) up to the date hereof or (B) during the Restricted Period to cease doing business with the Company; or
(d) solicit or hire any person or entity who is a director, officer, employee or agent of the Company or any Affiliate of the Company to leave its employ, (ii) aid or agree to aid perform services for any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary informationits Affiliates.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive acknowledges that (i) he has a major responsibility for the operation, administration, development and growth of the Company's business, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest interests of the Company and that the Company will not enter into this Agreement Agreement, but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 (a) Except as otherwise provided for in this Agreement, during the Term term of this Agreement and for a period of twelve (12) months following the termination of this Agreement (the "Termination Period")Agreement, Executive shall not, directly or indirectly, compete with respect to any services or products of the Company which are either offered or are being developed by the Company; or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Company; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America.
5.1.2 (b) During the Term term of this Agreement and during for a period of two (2) years after the termination of this Agreement (the "Termination Period"), Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in the Company's business.
5.1.3 (c) During the Term term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 (d) Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the CompanyBoard. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 (a) Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 (b) Notwithstanding the provisions of subsection 5.2.1 Subsection 5.2 (a) above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination determination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants. The prevailing party under an action or proceeding brought under this Section 5 shall be entitled to recover attorneys' fees and costs related to such action or proceeding.
Appears in 1 contract
Samples: Stock Purchase Agreement (Gateway International Holdings Inc)
Restrictive Covenants. 5.1 Executive acknowledges that (i) he has a major responsibility for the operation, administration, development and growth of the Company's Company s business, (ii) the Company s business has become international in scope, (iii) his work for the Company has brought him and will w i ll continue to bring him into close contact with confidential information of the Company and its customers, and (iiiiv) the agreements and covenants contained in this Section 5 Subsection 5.1 are essential to protect the business interest interests of the Company and its affiliates and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:follows with respect to the Company (which includes all affiliates in Mexico):
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of this Agreement (the "Termination Period"), Executive shall not, directly or indirectly, compete with respect to any services or products of the Company which are either offered or are being developed by the CompanyCompany as of the date of termination; or, without limiting the generality of the foregoing, be by or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executiveExecutive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the CompanyCompany as of the date of termination; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and during the and, for one year thereafter ("Termination Period"), Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee Executive of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve one (121) month year period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's Company s business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, Period and any time thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the confidential or proprietary affairs of the Company, includingi n c l u ding, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policiesp o licies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section breaches Subsection 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.:
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5Subsection 5.1.1, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of or proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination determination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's Company s right to of the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive acknowledges that (iA) he has a major responsibility for In the operation, administration, development and growth event of the Employee's termination with the Company's business, (ii) his work whether voluntarily or for the Company has brought him and cause, Employee agrees that he will continue to bring him into close contact with confidential information of the Company and its customersnot, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months four years following the termination of this Agreement (the "Termination Period"), Executive shall notsuch termination, directly enter into or indirectly, compete become associated with respect to any services or products of the Company which are either offered or are being developed by the Company; or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, engage in any capacity other business (whether as a partner, shareholder, owner, officer, director, executiveshareholder, principal, agent, creditor, trusteeemployee, consultant, co-venturer or otherwise) with ), which business is a direct or indirect competitor of the Company, or any individualcurrent or future subsidiary, corporationassociate, firm, association, partnership, affiliate or joint venture or other business entitypartner, which competes with respect to any services is a direct or products indirect competitor of the Company which are either offered Company, or are being developed by any subsidiary or Parent company.
(B) If any court shall hold that the Company; providedduration of non-competition or any other restriction contained in this paragraph is unenforceable, howeverit is our intention that same shall not thereby be terminated but shall be deemed amended to delete therefrom such provision or portion adjudicated to be invalid or unenforceable, that Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange or in the United States of Americaalternative, such judicially substituted term may be substituted therefor.
5.1.2 During (C) Employee agrees that during the Term term of this Agreement and during the Termination PeriodRestrictive Covenant, Executive shall he will not, directly or indirectly, (ia) induce contact, induce, or attempt to influence any employee customers or clients, joint venture partners, employee, consultant, associate or affiliate of the Company or its or their successors with respect to leave its employthe Company' proposed business as described in (A) above or for any reason whatsoever, (ii) aid or agree to aid any competitor, customer or supplier of without the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs written consent of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers signed by two executive officers; (b) request or advise any customers, salesclients, profits joint venture partners, suppliers, manufacturers, employees, consultants, associates or other financial information, which is confidential to affiliates of the Company or is not generally known in its or their successors, who may contact or attempt to contact the relevant tradeEmployee to withdraw, nor shall Executive make use of any curtail, or cancel such information for his own benefit. Any technique, method, process or technology used by parties' business with the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse its successors; (c) disclose to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to persons or corporations the Company at law names or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach addresses of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 abovecustomers, Executive acknowledges and agrees that in the event of a violation clients, joint venture partners, suppliers, manufacturers, wireless services providers, employees, consultants, associates, or threatened violation of any affiliates of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled or its or their successors; or (d) induce or encourage any employee to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect terminate his relationship with the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.. ARTICLE VII
Appears in 1 contract
Restrictive Covenants. 5.1 Executive acknowledges (a) The Sellers hereby covenant and agree that during the three-year period beginning on the Closing Date, the Sellers shall not, and shall cause their Affiliates not to, directly or indirectly, engage in any business that is competitive with the Acquired Business or own any interest in, operate, control, have a financial interest which provides any control of, or participate with or in, any Person producing, designing, providing, soliciting orders for, selling, distributing, consulting to, or marketing or re-marketing products or services, that are competitive with the Acquired Business, in each case, anywhere in the world; provided, that nothing in this Section 5.15(a) shall prohibit the Sellers or any of their Affiliates from (i) he owning or holding less than two percent of the outstanding shares of any class of stock that is regularly traded on a recognized US or non-US securities exchange or over-the-counter market, or (ii) acquiring an entity or business that engages in a business competitive with the Acquired Business as conducted as of the date hereof, so long as (A) the revenue from such competitive operations does not exceed either $25,000,000 or 10% of the total revenue of such entity or business (as applicable), and (B) the Sellers or their applicable Affiliate sells or otherwise divests each competitive operation within 12 months following such acquisition (unless such acquisition occurs more than two years and six-months after the Closing Date and such disposition would occur after the end of the three-year period described in this Section 5.15(a)).
(b) The Sellers hereby covenant and agree that during the three-year period beginning on the Closing Date, the Sellers shall not, and shall cause their Affiliates not to, directly or indirectly, employ, hire, engage or recruit, solicit, contact, or approach for employment, hiring, or engagement (whether as an employee, consultant, agent, independent contractor, or otherwise), or encourage to leave his or her employment or consulting relationship with a Buyer, a Group Company or any of their respective Affiliates, any Acquired Business Employee or otherwise seek or attempt to influence or alter any such Person’s relationship with a Buyer, a Group Company, or any of their respective Affiliates; provided, that nothing in this Section 5.15(a) shall prohibit the Sellers or any of their Affiliates from any: (i) general solicitation for employment (including in any newspaper or magazine, over the internet, or by any search or employment agency), if not specifically directed towards any such Person; (ii) hiring of any such Person where the initial contact with such individual regarding such hiring arose from any such general solicitation; or (ii) soliciting for employment or hiring any individual who at the time of such solicitation and hiring has not been employed by Buyer or any Affiliate of Buyer for at least six months prior to such solicitation.
(c) The Sellers recognize and acknowledge that, as of Closing Date, they will have knowledge of confidential or other proprietary information relative to the activities of the Buyers and the Group Companies, including information relating to financial statements or other financial information, clients, customers, potential clients or customers, employees, suppliers, equipment, designs, discoveries, drawings, programs, strategies, analyses, profit margins, pricing information, Contracts, sales and marketing information or materials, methods of operation, plans, processes, research, systems, techniques, Intellectual Property Rights, products, technologies, materials, innovations, improvements, technical know-how, developments, strategies, ideas, prospects, tangible or intangible work product or other proprietary information (“Confidential Information”). In light of the foregoing, from and after the Closing Date, the Sellers shall, and shall cause their Affiliates, directors, officers, employees and representatives to, maintain the confidentiality of, and refrain from using or disclosing for any purposes, whether directly or indirectly, to any Person, all Confidential Information, except to the extent disclosure of any such Confidential Information is (i) required by applicable Law, or (ii) after any such information is in the public domain through no act on the part of any Seller, or any of its Affiliates, directors, officers, employees or representatives. In the event that any Seller or any of its Affiliates receives a major responsibility request or is required (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any Confidential Information, such Seller shall, and shall cause its applicable Affiliates to, (A) provide the Buyers with prompt notice before such disclosure so that the Buyers may attempt to obtain a protective Order from a Governmental Entity or other assurance that confidential treatment will be accorded to such Confidential Information, and (B) cooperate with the Buyers in attempting to obtain such Order or assurance. In the event that such Order or assurance is not obtained or that the Buyers waive compliance with the provisions of this Section 5.15(c), the Sellers and their Affiliates may disclose to any Governmental Entity only any Confidential Information for which they have received a written legal opinion from counsel that such Confidential Information is legally required to be disclosed, and shall exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded to such Confidential Information.
(d) The Sellers acknowledge and agree that the length of time, scope, and geographic coverage of the covenants set forth in this Section 5.15 are fair and reasonable given the benefits the Sellers have received under this Agreement. The Sellers further agree that they will not challenge the reasonableness of the time and scope in any Action, regardless of who initiates such Action. The Sellers further acknowledge and agree that the covenants set forth in this Section 5.15 are necessary for the operation, administration, development and growth protection of the Company's businessBuyers’ legitimate business interests and that the Buyers would not have entered into this Agreement unless the Sellers had agreed for them and their Affiliates to be irrevocably bound by the covenants contained this Section 5.15, that irreparable injury will result to the Buyers if the Sellers or any of their Affiliates breach any of the terms of this Section 5.15, and that in the event of an actual or threatened breach by the Sellers or any of their Affiliates of any of the provisions contained in this Section 5.15, the Buyers would have no adequate remedy at Law. The Sellers accordingly waive, on behalf of themselves and their Affiliates, the defense of adequacy of a remedy at Law, and agree that in the event of any actual or threatened breach by any of them or any of their Affiliates of any of the provisions contained in this Section 5.15, the Buyers shall be entitled to seek injunctive and other equitable relief without (i) the posting of any bond or other security, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information necessity of the Company and its customersshowing actual damages, and (iii) the agreements necessity of showing that monetary damages are an inadequate remedy. Nothing contained in this Section 5.15 shall be construed as prohibiting the Buyers from pursuing any other remedies available to them for such breach or threatened breach, including the recovery of any damages that they are able to prove. The Sellers shall be liable for any breach by their Affiliates of this Section 5.15.
(e) This Section 5.15 shall be deemed to consist of a series of separate and independent covenants, and shall be worldwide in geographic scope. The Parties expressly agree that the character, duration and scope of this Section 5.15 are reasonable and necessary for the protection of the Buyers’ legitimate interests in the goodwill of the Group Companies in light of the circumstances as they exist on the date hereof and the consideration for the covenants contained in this Section 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of this Agreement (the "Termination Period"), Executive shall not, directly or indirectly, compete with respect to any services or products of the Company which are either offered or are being developed by the Company; or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Company; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange 5.15 is included in the United States of America.
5.1.2 During the Term of this Agreement and during the Termination Periodconsideration payable pursuant to Section 2.5. However, Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was should a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall determination nonetheless be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree a later date that the court making such termination shall have the power to reduce the character, duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the or geographical scope of such Restrictive Covenants. In the event that the courts of any one this Section 5.15 is void, unenforceable, or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason unreasonable in light of the breadth of such scope or otherwisecircumstances as they then exist, then it is the intention and the agreement of the parties hereto Sellers (on behalf of themselves and their Affiliates) that this Section 5.15 shall be construed by the court in such determination not bar or a manner as to impose only those restrictions (including with any such modification as may be required to make a restriction valid and enforceable) on the conduct of the Sellers and their Affiliates that are valid, enforceable, and reasonable in light of the circumstances as they then exist and as are necessary to assure the Group Companies and the Buyers of the intended benefit of this Section 5.15. If, in any way affect Action, a court shall refuse to enforce all of the Company's right separate covenants deemed included this Section 5.15 because, taken together, they are more extensive than necessary to assure the relief provided above in Group Companies and the courts Buyers of any other jurisdictions within the geographical scope intended benefit of such Restrictive Covenantsthis Section 5.15, as to breaches it is expressly understood and agreed among the Parties that those of such covenants that, if eliminated, would permit the remaining separate covenants to be enforced in such other respective jurisdictions, the above covenants as they relate to each jurisdiction beingAction shall, for the purpose of such Action, be deemed eliminated from the provisions of this purposeSection 5.15 and the Parties shall negotiate in good faith to replace such void or unenforceable covenant with a valid provision which, severable into diverse and independent covenantsas far as possible, has the same commercial effect as the provision which it replaces.
Appears in 1 contract
Samples: Equity and Asset Purchase Agreement (Carlisle Companies Inc)
Restrictive Covenants. 5.1 Executive acknowledges that (a) During Employee’s employment hereunder, and for the applicable Restricted Period (as defined below) thereafter, Employee shall not, without the written consent of the CEO of the Company:
(i) he has a major responsibility for the operation, administration, development and growth of the Company's business, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of this Agreement (the "Termination Period"), Executive shall not, Either directly or indirectly, compete with respect solicit or divert to any services Competing Business (as defined below) any individual or products entity that is a customer or prospective customer of the Company which are either offered or are being developed by its subsidiaries or affiliates, or was such a customer or prospective customer at any time during the preceding 18 months from the date of Employee’s employment termination with the Company; or;
(ii) Either directly or indirectly own, without limiting manage, operate, finance, join, control or participate in the generality of the foregoingownership, be management, operation, financing or becomecontrol of, or agree to be or become, interested in or associated with, in any capacity (whether connected as a partner, shareholder, owner, an officer, director, executiveemployee, partner, principal, agent, creditorrepresentative, trusteeconsultant or otherwise with, consultantor have any financial interest in, co-venturer or otherwise) aid or assist anyone else in the conduct of, or use or permit Employee’s name to be used in connection with any individual, corporation, firm, association, partnership, joint venture Competing Business (as defined below) or other business entity, by any entity which competes with respect to any services or products would require by necessity use of the Company which are either offered or are being developed by the CompanyConfidential Information (as defined above); provided, however, that Executive may ownnothing herein shall prevent you from investing in up to 5% of the securities outstanding of any company listed on a national securities exchange, provided that your involvement with any such company is solely that of a stockholder; and
(iii) Induce, offer, assist, encourage or suggest (A) that another business or enterprise offer employment to or enter into a business affiliation with any Company employee, agent or representative, or any individual who acted as an investmentemployee, not more than one percent agent or representative of the Company in the previous six months; (1%B) that any Company employee, agent or representative (or individual who acted as an employee, agent or representative of any class of securities of any publicly held corporation the Company in competition the previous six months) terminate his or her employment or business affiliation with the Company whose securities are traded on any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and during the Termination Period, Executive shall notCompany; or (C) hire or, directly or indirectly, (i) induce participate in the hiring of any Company employee or attempt to influence any person who was an employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Companyprevious six months, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction business, enterprise or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary informationemployer.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive acknowledges that (ia) he has a major responsibility for the operation, administration, development and growth of the Company's business, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, NONCOMPETE: At all times during the Term of this Agreement and for a period of twelve (12) months following Agreement, without the termination of this Agreement (Company's prior written consent, the "Termination Period"), Executive Consultant shall not, directly or indirectly, compete with respect to any services or products of the Company which are either offered or are being developed by the Company; or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested engage in or associated with, have any interest in any capacity sole proprietorship, partnership, corporation or business or any other person or entity (whether as a partner, shareholder, owneran employee, officer, director, executive, principalpartner, agent, security holder, creditor, trustee, consultant, co-venturer consultant or otherwise) with that directly or indirectly (or through any individual, corporation, firm, association, partnership, joint venture or other business affiliated entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Company; ) engages in minimally invasive endovascular procedures provided, however, that Executive may own, solely as an investment, the provisions of this Section 8 shall not apply to (i) any passive investment made by the Consultant in which he becomes a stockholder or investor owning no more than one percent a 5% interest (1%e.g., equity or equity-like securities) in such entity, (ii) his service as either a board member or advisor of any class corporation or entity listed on Exhibit A to this Agreement upon which the Consultant was serving as a member of securities its board of directors or providing advisory services to at the effective time of this Agreement; (iii) any publicly held corporation passive investment in competition with any venture fund listed on Exhibit A to this Agreement in which the Consultant had invested prior to the effective time of this Agreement; and (iv) any passive investment in any successor or affiliated venture funds created or organized by the entities and venture funds listed on Exhibit A to this Agreement following the date of this Agreement. Further, the Company whose securities are traded on any national securities exchange in agrees to allow the United States of America.
5.1.2 During Consultant during the Term of this Agreement to continue to serve on the board of directors of, and to continue his investment in, the companies listed on Exhibit A, and to perform services for, serve on the board of directors of, and invest in other companies so long as such activities are consistent with the provisions of this Section 8 and do not reasonably interfere with his obligations under this Agreement.
(b) NONSOLICITATION: At all times during the Termination PeriodTerm of this Agreement, Executive the Consultant shall not, directly or indirectly, for himself or for any other person, firm, corporation, partnership, association or other entity: (i) induce employ, or attempt to influence employ, or enter into any contractual arrangement with (1) any current employee of the Company, or (2) any former employee of Company whose termination of employment with the Company has occurred less than six (6) months prior to leave its employ, the date of such arrangement; (ii) aid call on or agree to aid solicit any competitor, customer of the actual or supplier targeted prospective clients of the Company on behalf of any person or entity in connection with any business competitive with the business of the Company, and/or (iii) make known the names and addresses of such clients or any information relating in any attempt manner to hire the Company's trade or business relationships with such customers, other than in connection with the performance of Consultant's duties under this Agreement. For purposes of this Section 8(b), the term "Company" shall include any affiliated companies of the Company.
(c) CONFIDENTIALITY: "Confidential Information" means secret or confidential information, knowledge or data relating to the Company and its respective businesses, but does not include information that: (a) is already lawfully in the possession of the Consultant through independent means at the time of disclosure thereof; (b) is or later becomes part of the public domain through no fault of the Consultant; (c) is lawfully received by the Consultant from a third party having no obligations of confidentiality to the Company; or (d) is required to be disclosed by order of a governmental agency or by a court of competent jurisdiction. Except as specifically authorized by an authorized officer of the Company or by written Company policies, the Consultant will not, either during or after the term of this Agreement, use or disclose Confidential Information to any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier is not an employee of the Company during any portion of said period Company, except as necessary to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term perform his or her duties under this Agreement. Upon termination of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over Consultant will promptly deliver to the Company all compensationConfidential Information in his possession. For purposes of this Section 8(c), profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or the term "Company" shall include any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any affiliated companies of the Restrictive CovenantsCompany.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Samples: Consulting Agreement (Ev3 Inc.)
Restrictive Covenants. 5.1 (a) The Executive acknowledges shall be prohibited from disclosing to anyone (except to the extent reasonably necessary to perform the Executive's duties hereunder) any confidential information concerning the business or affairs of ProServ, TV, the Company or its Subsidiaries which the Executive may have acquired in the course of and as incident to his employment or prior dealing with ProServ, TV, the Company or its subsidiaries, including, without limitation, client lists, business or trade secrets, or methods or techniques used by ProServ, TV, the Company or its subsidiaries in or about its business, provided, however, that the Executive need not keep confidential any information that (i) he has is obtained through other lawful sources not bound by a major responsibility for confidentiality agreement with the operation, administration, development and growth of the Company's businessCompany or either Subsidiary, (ii) his work for is or becomes known within the Company has brought him and will continue to bring him into close contact with confidential information trade or the public through no fault of the Company and its customersExecutive, and (iii) the agreements and covenants contained in this Section 5 are essential is required to be disclosed pursuant to an order or request of a judicial or governmental authority or to protect the business interest judicial rights of the Company and that Executive (provided the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, is given reasonable prior notice to the extent lawful) or (iv) is developed by the Executive covenants and agrees as follows:independently of the disclosure by the Company or either Subsidiary.
5.1.1 Except as otherwise provided for in this Agreement(b) Subject to Section 8(e), during the Term of this Agreement and for a period of twelve (12) months following Agreement, the termination of this Agreement (the "Termination Period"), Executive shall will not, directly or indirectly, compete with respect to any services or products of the Company which are either offered or are being developed by the Company; or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Company; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America.:
5.1.2 During the Term of this Agreement and during the Termination Period, Executive shall not, directly or indirectly, (i) induce influence or attempt to influence any employee of ProServ, TV, the Company or its subsidiaries to leave its employterminate his or her employment with ProServ, TV, or the Company;
(ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce influence or attempt to influence any person or persons, firm, association, syndicate, partnership, company, corporation or other entity that is then a contracting party with ProServ, TV, the Company or its subsidiaries to terminate any written or oral agreement with ProServ, TV, the Company or its subsidiaries;
(iii) employ and will not solicit employment elsewhere of any employee or consultant of ProServ, TV, the Company or its subsidiaries; and
(iv) subject to Sections 2(c) and 2(d), directly or indirectly, individually or with others, own, manage, operate, control, be employed by, participate in, solicit any business entity who was a customer from, perform consultation services for, or supplier be connected in any manner to the business of providing management, licensing, sponsorship sales, marketing, consulting and production services to sports related businesses and talent, in any area.
(c) The Executive hereby acknowledges that:
(i) the respective times, area and scope of activities agreed to in subsections (a) and (b), above, are reasonable in scope and necessary for the protection of the Company during any portion of said period to transact business with a competitor and good will of the Company:
(ii) since it is the understanding and desire of the parties hereto that the covenants contained in subsections (a) and (b), above, be enforced to the fullest extent possible under the laws and public policies applied in each jurisdiction in which enforcement may be sought, should any particular provision of such covenant be deemed invalid or unenforceable, such provision shall be deemed amended to delete therefrom the invalid portion, and the deletion shall apply only with respect to the operation of such provisions;
(iii) to the extent a provision is deemed unenforceable by virtue of its scope, but may be made enforceable by limitation thereof, such provision shall be enforceable only to the extent permissible under the laws and public policies applied in the jurisdiction to which enforcement is sought; and
(iv) the Executive's obligation and undertaking provided for in this Section 8 shall, to the extent applicable, continue beyond the termination of the Executive's relationship with the Company in hereunder to the extent provided herein.
(d) The Executive acknowledges that the services to be rendered by him hereunder are extraordinary and unique and are vital to the success of the Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in that the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding covenants undertaken hereunder would cause substantial damage to the provisions of subsection 5.2.1 aboveCompany, Executive acknowledges and agrees that impossible to exact ascertainment. Therefore, in the event of a violation the breach or threatened violation breach by the Executive of any of the provisions terms and conditions of Section 5this Agreement to be performed by him, the Company shall have no adequate remedy at law be entitled, in addition to any other rights or remedies available to it, to institute and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained prosecute proceedings in any court of competent jurisdiction jurisdiction, to seek immediate injunctive relief with notice but without bond.
(e) In the necessity event that (i) the Company terminates the Executive for "Cause" pursuant to Section 9(a)(iii) or (ii) the Executive voluntarily terminates his employment in violation of proving damages, posting any bond or other security, this Agreement and without prejudice to any other rights and remedies which may be available at law or "Adequate Justification" (as defined in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceableSection 9(b)(ii)), the same Executive shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard remain subject to the invalid non-compete provisions of Section 8(b) for one year following such termination, but shall otherwise have no further liability or unenforceable portions. Without limiting obligation hereunder to the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive CovenantsCompany. In the event that the courts Executive (i) exercises his right to terminate his employment at the end of any one or more the third year of the Term pursuant to clause (a) to the proviso contained in Section 1 and (ii) further elects, in his sole discretion, to remain subject to the noncompete provisions of Section 8(b) for a one-year period beginning on the third anniversary of the Effective Date, the Company shall grant to the Executive, in consideration thereof, on such third anniversary of the Effective Date, additional Stock Options for 40,000 shares of Class A Common Stock (adjusted as in Section 4(e)). The vesting, exercise period, exercise price determination and all other terms and provisions of such jurisdictions Stock Options shall hold such Restrictive Covenants wholly unenforceable by reason be the same as for those Stock Options granted to the Executive during the Term pursuant to Section 4(e). In all other circumstances involving the early termination or expiration of the breadth of such scope or otherwiseTerm, it is including the intention extension by the Company of the parties hereto that such determination not bar or in any way affect the Company's right Term for a fifth year pursuant to clause (b) to the relief provided above proviso contained in Section 1 followed by the courts termination or expiration of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictionsTerm, the above covenants as they relate Executive shall be subject to each jurisdiction being, for this purpose, severable into diverse no non-compete provisions unless the Company and independent covenantsthe Executive reach a separate agreement on mutually agreeable terms with respect thereto.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive acknowledges that (ia) he has a major responsibility for Notwithstanding the operation, administration, development and growth restrictions set forth in Section 6 of the Company's business, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following from the termination of this Agreement (the "Termination Period")Date:
x. Xxxxxx will not, Executive shall notand will not permit any person subject to his direction or control to, directly or indirectly, compete whether alone or in association with respect to others, as principal, officer, agent, consultant, employee, director or owner of any corporation, partnership, association or other entity, or through the investment of capital, lending of money or property, rendering of services or products otherwise, engage in, influence, control, have an interest in or otherwise become actively involved with any business that competes with the Company. Xxxxxx acknowledges that the business of the Company which is national and international in scope, as its current and anticipated customers and suppliers are either offered or are being developed by the Company; or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Company; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in located throughout the United States of Americaand abroad, and that it is therefore reasonable that the restrictions set forth in this Section 7(a)(i) not be limited to any specified geographic area.
5.1.2 During the Term of this Agreement and during the Termination Periodii. Xxxxxx will not directly or indirectly attempt to encourage, Executive shall notinduce or otherwise solicit, directly or indirectly, (i) induce or attempt to influence any employee of the Company Company, or any of its affiliates or subsidiaries, to breach his or her employment agreement or to leave its employtheir employment;
iii. Xxxxxx will not directly or indirectly attempt to encourage, (ii) aid induce or agree otherwise solicit, directly or indirectly, any business from, or attempt to aid sell, license, or provide the same or similar products or services as provided by the Company or any competitor, customer or supplier subsidiary of the Company in to any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company; and
iv. Xxxxxx will not call upon any prospective acquisition candidate, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity on Xxxxxx’x own behalf or on behalf of suppliers or customers, sales, profits or other financial informationany person, which candidate was, to Xxxxxx’x knowledge after due inquiry, either called upon by the Company, or any of its affiliates or subsidiaries, or for which the Company made an acquisition analysis, for the purpose of acquiring such candidate.
(b) The parties acknowledge that covenants and restrictions set forth in Sections 6 and 7 are necessary to protect the legitimate business interests of the Company. The parties agree that, if the scope of enforceability of any or all the restrictive covenants set forth in this Agreement is confidential in any way disputed at any time, a court may modify and enforce the covenants to the Company extent it believes to be reasonable under the circumstances existing at that time.
(c) Xxxxxx agrees that the breach by him of Sections 6 and 7 could not reasonably or is not generally known adequately be compensated in the relevant tradedamages in an action at law, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by and that the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-howentitled to injunctive relief which may include, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and but shall not be used by him limited to, restraining Xxxxxx from engaging in any way adverse to activity that would breach this Agreement. However, no remedy conferred by any of the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things specific provisions of Sections 6 and 7 (including this paragraph) is intended to be delivered or used by exclusive of any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns other remedy and each and every remedy shall be cumulative and shall be in addition to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breachesevery other remedy given hereunder, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is now or hereafter existing in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid by statute or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portionsotherwise. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts election of any one or more of such jurisdictions remedies by the Company shall hold such Restrictive Covenants wholly unenforceable by reason not constitute a waiver of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any pursue other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenantsavailable remedies.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive acknowledges that (i) he has a major responsibility for the operation, administration, development and growth In consideration of the Company's business, (ii) his work for employment by the Company has brought him of Executive and will continue to bring him into close contact with confidential information the consideration outlined in Article 3 of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of Executive agrees to be bound by this Agreement and for a period of twelve (12) months following the termination of this Agreement (the "Termination Period"), Section 4.3. Executive shall will not, directly or indirectly, compete do any of the following during the Term and the Restricted Period:
(a) engage or participate in any business activity substantially similar to an activity from which the Company or any of its subsidiaries or affiliates derives revenue (or, with respect to the application of this provision during the Restricted Period, engage or participate in any business activity substantially similar to an activity from which the Company or any of its subsidiaries or affiliates derived revenue during the 12 months preceding the date Executive’s employment ends) (a “Competing Business”), provided that notwithstanding the foregoing, Executive’s activities as or on behalf of a private equity investor, venture capital investor or a business enterprise operating multiple companies or businesses shall not be treated as a Competing Business except to the extent such activities involve activities that compete with entities that were the Company’s subsidiaries or affiliates from which the Company derived revenue during the 12 months preceding the date Executive’s employment ends;
(b) become interested in (as owner, stockholder, lender, partner, co-venturer, director, officer, employee, agent or consultant) any person, firm, corporation, association or other entity engaged in any Competing Business. Notwithstanding the foregoing, Executive may hold up to 4.9% of the outstanding securities of any class of any publicly traded securities of any company;
(c) solicit or call on, either directly or indirectly, for purposes of selling goods or services competitive with goods or products services sold by the Company or any of its subsidiaries or affiliates, any customer with whom the Company shall have dealt or any prospective customer that the Company has identified and solicited at any time during the Executive’s employment by the Company;
(d) adversely influence or attempt to adversely influence any supplier, customer or potential customer of the Company which are either offered to terminate or are being developed by modify any written or oral agreement or course of dealing with the Company;
(e) adversely influence or attempt to adversely influence any person to terminate or modify any employment, consulting, agency, distributorship or other arrangement with the Company; or
(f) employ or retain, without limiting the generality or arrange to have any other person or entity employ or retain, any employee or consultant of the foregoing, be Company or become, any of its subsidiaries or agree to be affiliates (or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Company; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America.
5.1.2 During the Term application of this Agreement and provision during the Termination Restricted Period, Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed or entity who, within the 12 months preceding the date Executive’s employment by the Company within the twelve (12) month period preceding such requested aidends, was employed or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to engaged by the Company or is not generally known any of its subsidiaries or affiliates as an employee or consultant). Executive acknowledges that the restrictions contained in Sections 4.1, 4.2 and 4.3 are reasonable and necessary to protect the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property legitimate interests of the Company and shall not be used by him in any way adverse to its subsidiaries and affiliates and that the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent duration of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceableRestricted Period, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 aboveSections 4.1, 4.2 and 4.3, are reasonable given Executive’s position within the Company and the substantial consideration payable under this Agreement. Executive further acknowledges that Sections 4.1, 4.2 and agrees 4.3 are included herein in order to induce the Company to enter into this Agreement and that the Company would not have entered into this Agreement or in the event absence of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equitythese provisions.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive Employee acknowledges that (i) the Company is in the information services business and that the Employee, as an executive officer of the Company, will be familiar in detail with the activities of the Company and will participate in formulating the activities; that he has will continue to be familiar in detail with the activities and future plans of the Company as they continue to develop during his employment; and that his position will give him a major responsibility for the operation, administration, development and growth thorough knowledge of the Company's businesscustomers, (ii) his work for suppliers and servicing and marketing operations and will place him in close and continuous contact with the Company's customers and suppliers. Employee further acknowledges that if he were to compete with the Company has brought him and will continue by organizing, directing, advising, assisting or becoming an employee of any business entity, as defined below, competing with the Company, he could do great harm to bring him into close contact with confidential information of the Company and its customers, and (iii) would materially diminish or destroy the agreements and covenants contained in this Section 5 are essential value to protect the business interest of the Company of its customer and that the Company will not enter into this Agreement but for such agreements supplier relationships and covenantsservicing and marketing arrangements. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement his employment by the Company and for a period of twelve one (121) months year immediately following the termination of this Agreement thereof (the Term of employment and the subsequent one (1) year period being collectively referred to as the "Termination Covenant Period")) unless otherwise consented to by the Company in writing, Executive Employee shall not, within any city, town or county in which the Company or any of its affiliates conducts or does any business, directly or indirectly, compete with respect to any services either for himself or products of the Company which are either offered or are being developed by the Company; oras an officer, without limiting the generality of the foregoingdirector, be or becomestockholder, partner, associate, employee, consultant, agent, independent contractor, or agree to representative, become or be or become, interested in or associated withwith any other business or business entity, as defined below (except a parent, subsidiary or affiliate of the Company), which is engaged directly or indirectly in any capacity (whether line of business which is competitive with any line of business in which the Company may be engaged at the time of termination of Employee's employment hereunder; provided, that the Employee shall be permitted to own less than a 5% interest as a partnerstockholder (and in no other capacity) in a company which is listed on any stock exchange or recognized over the-counter market system even though it may be in competition with the Company. The restrictions of this Section 5 shall not apply in the event of a Change of Control or termination of this Agreement by the Company without cause. As used in this Agreement, shareholderthe term "business entity" shall include, ownerbut not be limited to, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, partnership, association, partnershiptrust, group, joint venture venture, or individual proprietorship.
5.2 Employee shall not, during the Covenant Period or thereafter, disclose to any business entity any confidential information regarding the customers, suppliers, marketing arrangements or methods of operation of the Company, or any other confidential information of the Company, except that nothing contained in this sentence shall be construed to prevent Employee from using or disclosing any general technical knowhow and information that (i) is in the public domain or of a nature known generally throughout the industry, (ii) is required by law, (iii) was known to Employee prior to its disclosure by the Company, (iv) is or becomes generally available to the public other than as a result of an authorized disclosure by Employee; (v) becomes available to Employee through a source other than the Company; or (iv) is independently developed by Emplyee.
5.3 Employee shall, during the Term of his employment, promptly reveal to the Company all matters coming to Employee's attention pertaining to the business or interests of the Company.
5.4 Unless otherwise consented to by the Company in writing, Employee shall not, for a period of one (1) year immediately following the termination of Employee's employment, hire or solicit for hiring, on his own behalf or on behalf of any business entity, which competes with respect any person known to any services or products of the Company which are either offered or are being developed by the Company; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and during the Termination Period, Executive shall not, directly or indirectly, (i) induce or attempt Employee to influence any be a key employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier as of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier date of the Company during any portion of said period to transact business with a competitor of the Company in Company's businesstermination.
5.1.3 During the 5.5 Employee shall not, during his Term of this Agreementemployment or upon termination thereof, remove from the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs offices of the Company, includingany studies, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documentssamples, reports, plans, proposalscontracts, marketing and sales planspublications, client listscustomer lists or other similar items nor copies or facsimiles thereof, client files and materials made by him except as the same may relate to the performance of Employee's duties hereunder, or as otherwise authorized by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive Employee acknowledges and agrees that (i) he has a major responsibility for the operation, administration, development and growth --------------------- through his position as an employee of the Company's , he will learn valuable trade secrets and other proprietary information relating to the business, (ii) his work for Employee's services to the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customersare unique in nature, and (iii) the agreements and covenants Company would be irreparably damaged if Employee were to provide services to any person or entity in violation of the restrictions contained in this Section 5 are essential Agreement. Accordingly, as an inducement to protect the business interest of the Company and that the Company will not to enter into this Agreement but and in consideration of his employment hereunder, Employee agrees that until the Termination Date (as defined herein) and, with respect to all other areas in the United States where the Company has or proposes to commence business activities as of the Termination Date, for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve an additional twenty-four (1224) months following the termination of this Agreement thereafter (such periods being collectively referred to herein as the "Termination Restricted Period"), Executive shall notneither Employee nor any Affiliate of Employee (as defined below), shall, directly or indirectly, compete with respect to either for himself or for any services other person or products of the Company which are either offered entity:
(a) engage or are being developed by the Company; or, without limiting the generality of the foregoing, be or becomeparticipate in, or agree to assist, advise or be or becomeconnected with (including as an employee, interested in or associated withowner, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trusteeadvisor, consultant, co-venturer agent or otherwise) with ), or permit his name to be used by or render services for, any individual, corporation, firm, association, partnership, joint venture person or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Companyentity engaged in a Competing Business (as hereinafter defined); provided, however, that Executive may ownnothing in this Agreement shall prevent Employee from acquiring or owning, solely as an a passive investment, not more than up to one percent (1%) of any class of the outstanding voting securities of any an entity engaged in a Competing Business which is publicly held corporation in competition with the Company whose securities are traded on any recognized national securities exchange in market;
(b) take any action which might divert from the United States Company or an Affiliate of America.the Company any business which is within the scope of the Company's or such Affiliate's then business, including but not limited to the wireless video or data communications business;
5.1.2 During the Term of this Agreement and during the Termination Period, Executive shall not, directly (c) solicit or indirectly, attempt to solicit (i) induce any then subscriber or attempt other customer of the Company with whom the Employee had contact and/or knowledge as of the Termination Date to influence purchase Competing Services from any person or entity (other than the Company) or (ii) any then subscriber, customer, supplier, licensor, licensee or other business relation of the Company with whom the Employee had contact and/or knowledge as of the Termination Date to cease doing business with the Company; or
(d) solicit or hire any director, officer, employee or agent of the Company or any Affiliate of the Company to leave its employ, (ii) aid or agree to aid perform services for any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be its Affiliates. As used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants")herein, the Company following terms shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.meanings set forth below:
Appears in 1 contract
Restrictive Covenants. 5.1 Executive 2.1 The Individual acknowledges that that: (i) he or she has a major responsibility for had, and will continue to have during the operationterm of the Ongoing Agreement, significant involvement in the administration, development and growth of the CompanyDivision's business, ; (ii) his or her work for the Company Division has brought him or her, and will continue to bring him or her during the term of the Ongoing Agreement, into close contact with confidential information of the Division and its customers and employees and/or the Company and its customers, customers and employees; and (iii) the agreements and covenants contained in this Section 5 2 are essential to protect the business interest interests of the Company Division and that the Company will not enter into this Agreement but for such agreements and covenantsCompany. Accordingly, the Executive Individual covenants and agrees as follows:
5.1.1 2.1.a Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following Term, the termination of this Agreement (the "Termination Period"), Executive Individual shall not, directly or indirectly, within any state, province or other political subdivision of the United States or any other country in which the Division is conducting business, compete with respect to any services or products of the Company Division which are either offered or are being developed by the Company; Division or the Company (the "Division's Business"), or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executiveemployee, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with ), any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the CompanyDivision's Business; provided, however, that Executive Individual may own, solely as an investment, not more than one percent (1%) percent of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of Americaowned corporation.
5.1.2 2.1.b During the Term of this Agreement and during Term, the Termination Period, Executive Individual shall not, directly or indirectly, : (i) induce or attempt to influence any employee of the Company who shall have been employed in connection with the Division during the Term to leave its employ, ; (ii) aid or agree to aid any competitor, customer or supplier suppliers of the Company Division in any attempt to hire any person who shall have been employed by the Company within in connection with the twelve (12) month period preceding such requested aid, Division during the Term; or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company Division during any portion of said period to transact business with a competitor of the Company in Company's businessDivision.
5.1.3 2.1.c During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive Individual shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Division or the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Division or the Company or is not generally known in the relevant trade, nor shall Executive Individual make use of any such information for his or her own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive 2.2 Individual acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 52.1 (the "Restrictive Covenants"), the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, damages or posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 2.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination determination shall have the power to reduce the duration and/or scope and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 2.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants provisions of this Agreement upon the state and federal courts of any jurisdiction within the geographical scope State of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenantsCalifornia.
Appears in 1 contract
Samples: Asset Purchase Agreement (Wilshire Technologies Inc)
Restrictive Covenants. 5.1 Executive acknowledges that (i) he has a major responsibility for the operation, administration, development and growth of the Company's business, (ii) the Company's business has become national in scope, (iii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iiiiv) the agreements and covenants contained in this Section 5 Subsection 5.1 are essential to protect the business interest interests of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of this Agreement (the "Termination Period"), Executive shall not, directly or indirectly, compete with respect to any services or products of the Company which are either offered or are being developed by the CompanyCompany as of the date of termination; or, without limiting the generality of the foregoing, be by or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executiveExecutive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the CompanyCompany as of the date of termination; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and during the and, so long as Executive is receiving compensation hereunder ("Termination Period"), Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve one (121) month year period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, Period and any time thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the confidential or proprietary affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section breaches Subsection 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5Subsection 5.1.1, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of or proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination determination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to of the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 (a) The Executive acknowledges that (i) he has a major responsibility for the operation, administration, development his services and growth responsibilities are unique in character and are of particular significance to the Company's business, (ii) his work for that the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the is a competitive business interest of the Company and that the Executive's continued and exclusive service to the Company will not enter into under this Agreement but for such agreements and covenantsis of a high degree of importance to the Company. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this AgreementTherefore, during the Term of this Agreement Employment Period and for a period of twelve the applicable periods specified below (12) months following the termination of this Agreement (each, the "Termination Noncompete Period"), the Executive shall not, directly or indirectly, compete as owner, partner, joint venturer, Executive, broker, agent, corporate officer, principal, licensor, shareholder (unless as owner of no more than five percent (5%) of the issued and outstanding capital stock of such entity if such stock is traded on a major securities exchange) or in any other capacity whatsoever, engage in or have any connection with respect any business which is competitive with the Company, and which operates anywhere in the United States, European or Far East corridors on the effective date of termination of this Agreement: Reason for Termination Noncompete Period ---------------------- ----------------- Termination without cause N/A Termination for cause 1 year For purposes of this Agreement, a business will be deemed to be competitive with the Company if it is an importer/re-seller of Karaoke hardware and software specializing in the United States mass merchant marketplace.
(b) In addition to the restrictions set forth in Section 13(a), during the Noncompete Period, the Executive shall not:
(i) directly or indirectly, by initiating contact or otherwise, induce, influence, combine or conspire with, or attempt to induce, influence, combine or conspire with, any services of the officers, Executives or products agents of the Company which are either offered to terminate his, her or are being developed by its employment or relationship with or to compete against the Company; or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity
(whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwiseii) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Company; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and during the Termination Period, Executive shall not, directly or indirectly, (i) induce by initiating contact or otherwise, divert or attempt to influence divert any employee or all of any customers' or suppliers' business with the Company.
(c) If, in any judicial proceedings, a court shall refuse to enforce any of the Company covenants included in this Section 13 due to leave its employextent, (ii) aid geographic scope or agree duration thereof, or otherwise, then such unenforceable covenant shall be amended to aid any competitorrelate to such lesser extent, customer geographic scope or supplier of duration and this Section 13 shall be enforceable, as amended. In the event the Company in should bring any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, legal action or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term other proceeding against Executive for enforcement of this Agreement, the Termination Periodcalculation of the Noncompete Period shall not include the period of time commencing with the filing of legal action or other proceeding to enforce this Agreement through the date of final judgment or final resolution, including all appeals, if applicableany, of such legal action or other proceeding unless the Company is receiving the practical benefits of this Section 13 during such time. The existence of any claim or cause of action by the Executive against the Company predicated on this Agreement or otherwise shall not constitute a defense to the enforcement by the Company of these covenants.
(d) The Executive has carefully considered the nature and extent of the restrictions upon the Executive and the rights and remedies conferred upon the Company under this Section 13, and thereafterthe Executive hereby acknowledges that the restrictions on his activity as contained herein are reasonably required for the Company's protection, Executive shall would not other than in operate as a bar to the performance Executive's sole means of his duties disclose support, are fully required to anyone any information about protect the affairs legitimate interests of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential do not confer a benefit on the Company disproportionate to the detriment to the Executive and are material inducements to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of to enter into this Agreement.
5.1.4 . The Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation by him of any of the provisions of Section 5this Agreement, the Company shall have no adequate remedy at law and shall therefore will be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, institute and without prejudice to any other rights and remedies which may be available prosecute proceedings at law or in equity.
5.3 If any of the Restrictive Covenants, equity to obtain damages with respect to such violation or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon specific performance of this Agreement by the courts of any jurisdiction within Executive or to enjoin the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or Executive from engaging in any way affect the Company's right to the relief provided above activity in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenantsviolation hereof.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive acknowledges that (i) he has a major responsibility for the operation, administration, development and growth of the Company's business, (ii) his work for the Company has brought him and will continue In order to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential induce Employer to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. AccordinglyAgreement, the Executive covenants and hereby agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement (a) While Executive is employed by Employer and for a period of twelve twenty-four (1224) months following after the effective date of termination of such employment for reasons other than those set forth in Section 5(b) of this Agreement Agreement, Executive shall not divulge or furnish any trade secrets (as defined in IND. CODE ' 24-2-3-2) of Employer or any confidential information acquired by him while employed by Employer concerning the "Termination Period")policies, plans, procedures or customers of Employer to any person, firm or corporation, other than Employer or with its prior written consent, or use any such trade secret or confidential information directly or indirectly for Executive's own benefit or for the benefit of any person, firm or corporation other than Employer, as such trade secrets and confidential information are confidential and shall at all times remain the property of Employer.
(b) For a period of twenty-four (24) months after the effective date of termination of Executive's employment hereunder for reasons other than those set forth in Section 5(b) of this Agreement, Executive shall not, directly or indirectly, compete with respect to provide banking or bank-related services to, or solicit the banking or bank-related business of, any customer of Employer at the time of such provision of services or products solicitation which Employee served either alone or with others while employed by Employer within St. Josexx, Xxkhart, Marsxxxx or LaPorte Counties in the State of the Company which are either offered or are being developed by the Company; or, without limiting the generality of the foregoing, be or becomeIndiana, or agree assist any actual or potential competitor of Employer to be provide banking or becomebank-related services to, interested in or associated withsolicit the banking or bank-related business of, any such customer in any capacity (whether such area, and Executive shall not, directly or indirectly, as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, or trustee, consultant, co-venturer or otherwise) with through the agency of any individual, corporation, firm, association, partnership, joint trade association, agent or agency, engage in any banking or bank-related business or venture or other business entity, which competes with respect to any services or products the business of the Company which are either offered or are being developed Employer as conducted during Executive's employment by the CompanyEmployer within such area; provided, however, that Executive may own, solely as an investment, own not more than one five percent (1%) of any class of the voting securities of any publicly held corporation in competition with entity providing banking or bank-related services within such area if the Company whose voting securities of such entity are traded on any a national securities exchange in the United States of Americaor quoted on a national interdealer quotation system.
5.1.2 During (c) Executive acknowledges that any violation of this Section 12 would cause irreparable harm to Employer, that damages for such harm would be incapable of precise measurement and that, accordingly, Employer would not have an adequate remedy at law to redress the harm caused by such violation. Therefore, Executive agrees that, in addition to any other remedy, Employer shall be entitled to immediate (i.e., without prior notice) preliminary and final injunctive relief to enjoin and restrain any violation of this Section 12. If Executive's employment is terminated during the Term of this Agreement and during the Termination Period, Executive shall not, directly or indirectly, (ifor reasons set forth in Section 5(b) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose have no obligations to anyone any information about the affairs of the Company, including, without limitation, Employer with respect to trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers confidential information or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of noncompetition under this AgreementSection 12.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 (a) Executive acknowledges that (i) he has a major responsibility for the operation, administration, development and growth of the Company's business, (ii) the Company's business is or may become national or international in scope, (iii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iiiiv) the agreements and covenants contained in this Section 5 6 are essential to protect the business interest interests of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. AccordinglyFor purposes of this Section 6, references to the Company shall mean the Company and its Subsidiaries.
(i) During the Term and until the later of (x) two years following the date of termination of Executive's employment with the Company for any reason and (y) the end of the period during which the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for is entitled to receive the Extended Severance Benefit pursuant to Section 5(e)(iii) (disregarding any exercise of rights to have the then present value of the Extended Severance Benefit paid in this Agreement, during the Term of this Agreement and for a period of twelve (12advance under Section 5(f)) months following the termination of this Agreement (the "Termination PeriodTERMINATION PERIOD"), the Executive shall not, directly or indirectly, compete with respect to perform any services in the United States for any person or products entity other than the Company that is in the business, directly or indirectly, of providing health care services of the type the Company which are either offered is providing, or are being developed by of the Companytype the Executive is aware the Company is contemplating providing, at the time of the Executive's termination (the "BUSINESS"); or, without limiting the generality of the foregoing, be or become, become or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executiveemployee, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entityentity that competes in the Business; PROVIDED, which competes with respect to any services or products of the Company which are either offered or are being developed by the Company; provided, howeverHOWEVER, that the Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any corporation that is publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of AmericaAmerica or reported on the National Association of Securities Dealers, Inc.'s Automated Quotation System.
5.1.2 (ii) During the Term of this Agreement and during the Termination Period, the Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company or its Subsidiaries to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company or its Subsidiaries in any attempt to hire any person who shall have been employed by the Company or its Subsidiaries within the twelve (12) month one-year period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company or its Subsidiaries during any portion of said period the Term or the Termination Period to transact business with a competitor of the Company in the Company's business.
5.1.3 (iii) During the Term of this AgreementTerm, the Termination Period, if applicable, Period and thereafter, the Executive shall not other than in the performance of his duties disclose to anyone any material information about the affairs of the CompanyCompany or its Subsidiaries, including, without limitation, including trade secrets, trade "know-how", ," inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, information which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by (c) If the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 6(b) (the "Restrictive CovenantsRESTRICTIVE COVENANTS"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, to any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, : The Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5Sections 6(b), the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 (d) If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the Employment Agreement -- Page 11 generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination determination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 (e) The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 1. Executive acknowledges that (i) he has a major responsibility for the operation, administration, development and growth of the Company's business, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 E.1 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 a. Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of and, if this Agreement is terminated under Section F.3 or F.5 during the Term, for two (2) years following such date of termination (the "Termination Period"), the Executive shall not, directly or indirectly, compete with respect to any services or products of the Company which are either offered or are being developed by the CompanyCompany as of the date of termination; or, without limiting the generality of the foregoing, be or become, . or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executiveExecutive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the CompanyCompany as of the date of termination; provided, however, that the Executive may own, solely as an investment, not more than one two percent (12%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America.
5.1.2 b. During the Term term of this Agreement and and, if applicable, during the Termination Period, the Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee executive of the Company to leave its employ, or (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 c. During the Term of this Agreement, the Termination Period, if applicable, and thereafter, the Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall the Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by 2. If the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 E.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 a. The Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by the Executive or any person or business entity controlled by the Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 b. Notwithstanding the provisions of subsection 5.2.1 a. above, the Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5E.1, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 3. If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 4. The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.such
Appears in 1 contract
Samples: Employment Agreement (Cypress Financial Services Inc)
Restrictive Covenants. 5.1 Executive acknowledges that (i) he has a major responsibility for the operation, administration, development and growth of the Company's business, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section Paragraph 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 (a) Except as otherwise provided for in this Agreement, during the Term of this Agreement and and, if this Agreement is terminated for a period of twelve any reason during the Term, for twenty-four (1224) months following the such date of termination of this Agreement (the "Termination Period"), the Executive shall not, directly or indirectly, compete with respect to any services or products of the Company which are either offered or are being developed by the Company; or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executiveExecutive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Company; provided, however, that the Executive may own, solely as an investment, not more than one five percent (15%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America, and may retain his ownership interest in those entities referred to in Subparagraph 4.1.
5.1.2 (b) During the Term term of this Agreement and and, if applicable, during the Termination Period, the Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve one (121) month year period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 (c) During the Term of this Agreement, the Termination Period, if applicable, and thereafter, the Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall the Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 (d) Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that which he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 5.3 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive acknowledges that (ia) he has a major responsibility During the period commencing on the Closing Date and continuing for five (5) years after the operationClosing Date (such period, administrationthe “Restricted Period”), development and growth of the Company's business, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customersno Restricted Party shall, and (iii) the agreements and covenants contained in this Section 5 are essential shall not permit any Restricted Family Member related to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of this Agreement (the "Termination Period"), Executive shall notRestricted Party, directly or indirectly, compete individually or in concert with respect to or through any services or products of the Company which are either offered or are being developed by the Company; orother Person, without limiting the generality of the foregoingown, manage, operate, control, be employed by, work on behalf of, invest in, assist (financially or becomeotherwise), provide advisory, consulting, or agree to be or becomeother services for, interested participate in or associated withbe interested or connected in any manner with the ownership, management, operation, promotion, or control of any Person who is engaged, directly or indirectly, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other the business entity, which competes with respect to any services or products of manufacturing laminates for electric motor rotors and stators and transformer cores anywhere in the Company which are either offered or are being developed by the CompanyRestricted Territory; provided, however, that Executive may own, solely as nothing in this Section 6.07(a) shall prevent the Restricted Parties or Restricted Family Members from acquiring an investment, not more than one equity interest of three percent (13%) or less of any class the outstanding shares of securities capital stock of any publicly held corporation in competition traded corporation.
(b) During the Restricted Period, the Restricted Parties will not, directly or indirectly (through a Restricted Family Member or otherwise), as an owner, member, partner, shareholder, employee, joint venturer, independent contractor, director, officer, agent, salesperson, consultant, lender or otherwise, solicit, call upon, employ, hire, retain, attempt to employ or retain, induce, request or influence any sales representative, supplier, vendor, service provider, employee, consultant, independent contractor, licensee, strategic partner, customer or any other Person which has an employment or business relationship with the Company whose securities are traded on Buyer or the Acquired Companies (or which had an employment or business relationship or prospective employment or business relationship with any national securities exchange of the Acquired Companies at any time in the United States twelve (12) months immediately preceding the Closing Date) to (or attempt to) discontinue, diminish, divert, reduce the extent of, or otherwise adversely affect such employment or business relationship or prospective employment or prospective business relationship with any of Americathe Acquired Companies; provided, however, that the provisions of this Section 6.07(b) shall not preclude solicitation in the form of the placement of a general advertisement or other solicitation of a general nature not specifically directed or targeted toward employees of the Acquired Companies.
5.1.2 (c) During the Term of this Agreement and during the Termination Restricted Period, Executive shall notthe Restricted Parties will not and will not permit any Restricted Family Member to (except as otherwise permitted under this Section 6.07), directly or indirectly, (i) solicit or encourage (A) any current customer or vendor of any Acquired Company as of the Closing Date, or (B) any Person that was a customer or vendor of any Acquired Company during the twenty-four (24) month period prior to the Closing Date, to terminate or diminish, during the Restricted Period, its relationship with any Acquired Company; or (ii) solicit, induce or attempt to influence solicit or induce any employee customer, supplier, licensee or other business relation of the any Acquired Company to leave its employcease or reduce, (ii) aid or agree to aid any competitorduring the Restricted Period, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact doing business with a competitor of the any Acquired Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents interfere or things attempt to be delivered or used by any third party without specific direction or consent of interfere with the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in relationship between any such trade secret customer, supplier, licensee or proprietary informationbusiness relation, on the one hand, and such Acquired Company, on the other hand.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive d) Each Restricted Party hereby acknowledges and agrees that the restrictive period of time, geographic scope and scope of restricted activity specified herein are reasonable and necessary in view of the transactions contemplated by this Agreement and the nature of the business in which the Acquired Companies are engaged as of the Closing Date and are necessary to protect Buyer’s investment under this Agreement and to safeguard the value and goodwill associated with the purchase of the Company Interests. Each Restricted Party acknowledges and agrees that Buyer would not have entered into this Agreement but for each of the Restricted Party’s agreements and obligations pursuant to this Section 6.07. If the scope of any stated restriction is too broad to permit enforcement of such restriction(s) to its full extent, then the parties agree that such restriction shall be enforced and/or modified to the maximum extent permitted by Law. If it is judicially determined that a Restricted Party has violated any of such Restricted Party’s obligations under this Section 6.07, then the period applicable to each obligation of such Restricted Party that is determined to have been violated will automatically be extended by a period of time equal in length to the period during which such violation(s) occurred.
(e) The parties agree that a breach of the provisions of this Section 6.07 may cause irreparable damage to the Buyer, the extent of which may be difficult to ascertain, and that the award of damages may not be adequate relief. Therefore, the Restricted Parties agree that, in the event of a violation breach or a threatened violation of any breach of the provisions of this Section 56.07, the Company shall have no adequate remedy at law and shall therefore be entitled Buyer may institute an Action to enforce each compel the specific performance of the provisions of this Section 6.07. The Restricted Parties further consent to the granting of such provision by temporary or permanent injunctive or mandatory relief obtained in any court remedy, agrees not to assert adequacy of competent jurisdiction without the necessity of proving damages, posting any bond or other securitymoney damages as a defense, and without prejudice agree that such remedy shall be cumulative, not exclusive, and in addition to any other rights and remedies which may be available at law or in equityremedies.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Samples: Equity Interest Purchase Agreement (Worthington Industries Inc)
Restrictive Covenants. 5.1 Executive acknowledges that (i) he has a major responsibility for the operation, administration, development and growth of the Company's business, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section Paragraph 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 (a) Except as otherwise provided for in this Agreement, during the Term of this Agreement and and, if this Agreement is terminated for a period of twelve any reason during the Term, for eighteen (1218) months following the such date of termination of this Agreement (the "Termination Period"), the Executive shall not, directly or indirectly, compete with respect to any services or products of the Company which are either offered or are being developed by the Company; or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executiveExecutive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Company; provided, however, that the Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America, and may retain his ownership interest in those entities referred to in Subparagraph 4.1.
5.1.2 (b) During the Term term of this Agreement and and, if applicable, during the Termination Period, the Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve one (121) month year period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 (c) During the Term of this Agreement, the Termination Period, if applicable, and thereafter, the Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall the Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 (d) Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that which he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 5.3 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive acknowledges that (i) he has a major responsibility for During the operationRestricted Period, administration, development and growth of the Company's business, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customerseach Class B Member shall not, and (iii) the agreements shall cause its Principals and covenants contained in this Section 5 are essential Affiliates to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of this Agreement (the "Termination Period"), Executive shall not, directly or indirectly, compete with respect to any without in each instance the prior written consent of the Managing Member:
(i) invest in, own, manage, operate, finance, control, be employed by, or participate in the ownership, management, operations, financing or control of, lend its name or a similar name to, lend its credit to, render services or products advice to, or otherwise assist, any Person (other than to the Company or a Subsidiary of the Company which are either offered Company) that engages in, owns, invests in, operates, manages or are being developed by the Company; orcontrols, without limiting the generality of the foregoingany venture, be or becomebusiness, or agree to be enterprise engaged in providing Competitive Investment Services in North America, Europe or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the CompanyAsia; provided, however, that Executive a Class B Member may own, solely as an investment, not (A) own no more than one percent (1%) 3% of any class of securities of any publicly held corporation in competition with the Company whose securities are Person traded on any national securities exchange and no more than 5% of any class of securities of any Person whose securities are not traded on any national securities exchange (so long as such securities do not constitute more than 5% of the overall equity or voting power of such Person) and (B) may provide investment advice for managing the assets of himself or members of his Immediate Family; provided, further, that in the United States event a Class B Member’s employment is terminated by the Company or any of America.
5.1.2 During its Subsidiaries thereof other than a termination For Cause (as such term is defined in the Term Amended and Restated Operating Agreement of XXXX Group, LLC, as such is in effect from time to time), the provisions of this Agreement Section 8.8(b)(i) shall automatically terminate with respect to, and during the Termination Periodno longer be applicable to, Executive shall notsuch Class B Member;
(ii) solicit, directly hire or indirectlyemploy, or otherwise engage (ior assist any other Person in soliciting, hiring, employing or otherwise engaging) induce as an employee, independent contractor or attempt to influence otherwise, any employee of the Company to leave or any of its employSubsidiaries who was employed or engaged by the Company or any of its Subsidiaries, (ii) aid or agree to aid in any competitor, customer way interferes with any such person’s contractual arrangements or supplier relationship with any of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or its Subsidiaries;
(iii) solicit (or assist any other Person in soliciting) the business of any current, former or prospective Client of any of the Company or any of its Subsidiaries (excluding any Person that has not been a Client or prospective Client of the Company or any of its Subsidiaries within one year prior to such solicitation); provided, however, that a Class B Member shall not be deemed to be in violation of this Section 8.8(b)(iii) solely by virtue of such Class B Member’s employment by or association with a Person that such Class B Member does not control (even if such Person solicits any such current former, or prospective Client of the Company or any of its Subsidiaries), so long as the Class B Member is not engaged in, does not participate in or encourage and is not directly or indirectly in any way responsible for such solicitation or persuasion efforts;
(iv) otherwise induce or attempt to influence induce (or assist any person other Person in inducing) any current, former or business entity who was a customer or supplier of the Company during any portion of said period prospective Client to transact cease doing business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant tradeany of its Subsidiaries, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents interfere with the relationship between any current, former or things prospective Client and the Company or any of its Subsidiaries;
(v) issue, disseminate or otherwise make public any written or oral statements likely to be delivered disparage or used by any third party without specific direction harm the business or consent reputation of the Board Company or any of Directors its Subsidiaries or the reputation of any executive or employee of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary informationits Subsidiaries; or
(vi) breach its covenants under Section 13.1.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Samples: Limited Liability Company Agreement
Restrictive Covenants. 5.1 Executive acknowledges that (iI) he has a major responsibility for the operation, administration, development and growth of the Company's Company s business, (ii) the Company s business has become international in scope, (iii) his work for the Company has brought him and will w i ll continue to bring him into close contact with confidential information of the Company and its customers, and (iiiiv) the agreements and covenants contained in this Section 5 Subsection 5.1 are essential to protect the business interest interests of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of this Agreement (the "Termination Period"), Executive shall not, directly or indirectly, compete with respect to any services or products of the Company which are either offered or are being developed by the CompanyCompany as of the date of termination; or, without limiting the generality of the foregoing, be by or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executiveExecutive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the CompanyCompany as of the date of termination; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and during the and, for one year thereafter ("Termination Period"), Executive shall not, directly or indirectly, (iI) induce or attempt to influence any employee Executive of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve one (121) month year period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's Company s business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, Period and any time thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the confidential or proprietary affairs of the Company, includingi n c l u ding, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policiesp o licies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section breaches Subsection 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.:
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5Subsection 5.1.1, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of or proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination determination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's Company s right to of the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 (a) Executive acknowledges and agrees that the restrictive covenants and other post-termination obligations set forth in the RCA, including without limitation Executive’s obligations relating to confidentiality, non-use and non-disclosure of Confidential Information (ias defined in the RCA), non-solicitation, cooperation, and return of property, are hereby incorporated by reference and shall remain in full force and effect pursuant to their terms to the maximum extent permitted by applicable law, except that the parties expressly agree to modify the RCA by removing Section 6, and each subpart thereto, of the RCA, which shall be of no further force or effect upon the Effective Date (as defined below). Executive represents and warrants that Executive has complied with all provisions of the RCA at all times through the Effective Date.
(b) he has a major responsibility In consideration for the operation, administration, development severance payments and growth benefits set forth in Section 1 of the Company's business, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and Executive agrees for a period of twelve (12) 12 months following after the termination of this Agreement Effective Date (the "Termination “Noncompetition Restricted Period"), Executive shall not, ”) to not directly or indirectly, compete with respect to on Executive’s own behalf or for the benefit of any services other individual or products entity: (i) operate, conduct, engage in, or own (except as a holder of not more than three percent (3%) of the Company which are either offered stock of a publicly held company), or are prepare to operate, conduct, engage in, or own any business that develops, markets, distributes, plans, sells or otherwise provides, or is preparing to develop, market, distribute, plan, sell or otherwise provide, any product or service that is in competition with any of the products or services being developed developed, marketed, distributed, planned, sold or otherwise provided by the Company; or, without limiting Company or its affiliates at the generality of the foregoing, be or becometime of, or agree to be during the 12 months preceding, Executive’s termination from the Company (a “Competing Business”) or become(ii) participate in, interested render services to, or assist any individual or entity that engages in or associated with, a Competing Business in any capacity (whether as a partneran employee, shareholdermanager, ownerconsultant, director, officer, directorcontractor, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture (A) which involve the same or other business entity, which competes with respect to any similar types of services or products of Executive performed for the Company which are either offered or are being developed by at any time during the Company; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) last two years of any class of securities of any publicly held corporation in competition Executive’s employment with the Company whose securities are traded on or (B) in which Executive could reasonably be expected to use or disclose Confidential Information, in each case (i) and (ii) limited to each city, county, state, territory and country in which (x) Executive provided services or had a material presence or influence at any national securities exchange time during Executive’s last two years of employment with the Company or (y) the Company is engaged in or has plans to engage in the United States Competing Business as of Americathe Effective Date. Without limiting the Company’s ability to seek other 1 To be determined by the Company at the time of separation. remedies available in law or equity, if Executive violates this Section 4(b), the Noncompetition Restricted Period shall be extended by one day for each day that Executive is in violation of such provisions, up to a maximum extension equal to the length of the Noncompetition Restricted Period, so as to give the Company the full benefit of the bargained-for length of forbearance.
5.1.2 During (c) Executive’s continued compliance with the Term terms of the RCA (as modified in Section 4(a) above) and the noncompetition obligations set forth in Section 4(b) above (collectively, the “Restrictive Covenants”) is a material condition to receipt of the severance payments and benefits set forth in Section 1 of this Agreement. In the event Executive breaches any part of such Restrictive Covenants, then, in addition to any remedies and enforcement mechanisms set forth in the RCA and this Agreement and during the Termination Period, Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 (including equitable and injunctive remedies), Executive shall account for forfeit any additional consideration owing and pay over shall be obligated to promptly return to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or (within two (2) business entity controlled by Executive resulting from any action or transactions constituting a breach days of any breach) the full gross amount of all severance payments and benefits provided.
(d) If any provision of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company Covenants shall have no adequate remedy at law and shall therefore be entitled determined to enforce each such provision be unenforceable by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity or arbitrator by reason of proving damagesits extending for too great a period of time or over too large a geographic area or over too great a range of activities, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which it shall be given full effectinterpreted to extend only over the maximum period of time, without regard geographic area or range of activities as to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then which it may be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive acknowledges that (i) he she has a major responsibility for the operation, administration, development and growth of the Company's business, (ii) his her work for the Company has brought him and will continue to bring him her into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest interests of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 5.1.a Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of this Agreement (the "Termination Period"), Executive shall not, directly or indirectly, within any state, province or other political subdivision of the United States or any other country in which the Company is conducting business, compete with respect to any services or products of the Company which are either offered or are being developed by the Company (the "Company; 's Business"), or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executiveemployee, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with ), any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Company's Business; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) percent of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of Americaowned corporation.
5.1.2 During 5.1.b During, and for one year after, the Term of this Agreement and during the Termination PeriodTerm, Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier suppliers of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month one year period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 5.1.c During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his her own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, 5.1 (the "Restrictive Covenants") the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.or
Appears in 1 contract
Restrictive Covenants. 5.1 (a) Executive acknowledges that (i) he has a major responsibility for the operation, administration, development and growth of the Company's business, (ii) the Company's business is or may become national or international in scope, (iii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iiiiv) the agreements and covenants contained in this Section 5 7 are essential to protect the business interest interests of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:.
5.1.1 Except as otherwise provided for in this Agreement, during (i) During the Term of this Agreement and for a period of twelve (12) months until three years following the date of termination of this Agreement Executive's employment with the Company for any reason (the "Termination PeriodTERMINATION PERIOD"), the Executive shall not, directly or indirectly, compete with respect to perform any services in the United States for any person or products entity other than the Company that is in the business, directly or indirectly, of providing health care services of the type the Company which are either offered is providing, or are being developed by is contemplating providing, at the Companytime of the Executive's termination (the "BUSINESS"); or, without limiting the generality of the foregoing, be or become, become or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executiveemployee, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entityentity that competes in the Business; PROVIDED, which competes with respect to any services or products of the Company which are either offered or are being developed by the Company; provided, howeverHOWEVER, that the Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any corporation that is publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of AmericaAmerica or reported on the National Association of Securities Dealers, Inc.'s Automated Quotation System.
5.1.2 (ii) During the Term of this Agreement and during the Termination Period, the Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company or its Subsidiaries to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company or its Subsidiaries in any attempt to hire any person who shall have been employed by the Company or its Subsidiaries within the twelve (12) month one-year period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company or its Subsidiaries during any portion of said period the Term or the Termination Period to transact business with a competitor of the Company in the Company's business.
5.1.3 (iii) During the Term of this AgreementTerm, the Termination Period, if applicable, Period and thereafter, the Executive shall not other than in the performance of his duties disclose to anyone any material information about the affairs of the CompanyCompany or its Subsidiaries, including, without limitation, including trade secrets, trade "know-how", ," inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, information which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by (c) If the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 7(b) (the "Restrictive CovenantsRESTRICTIVE COVENANTS"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, to any other rights and remedies available to the Company at law or in equity.:
5.2.1 (i) The Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to the Executive's benefit which are derived or received by the Executive or any person or business entity controlled by the Executive resulting from any action actions or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 (ii) Notwithstanding the provisions of subsection 5.2.1 aboveSection 7(c)(i), the Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5Sections 7(b) , the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 (d) If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination determination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 (e) The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive 7.1 Employee acknowledges that (i) he has a major responsibility for the operation, administration, development and growth of the Company's business, ; (ii) the Company's business is or may become national or international in scope; (iii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, clients; and (iiiiv) the agreements and covenants contained in this Section 5 7 are essential to protect the business interest interests of the Company and that the Company will would not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive Employee covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, that during the Term term of this Agreement and for a period of twelve (12) months following the termination of and, if this Agreement (the "Termination Period")is terminated for any reason other than pursuant to Section 3.1 hereof, Executive for two years following such date of termination, Employee shall not, directly or indirectly, within any county in any state of the United States compete with respect to any services or products of the Company which are either offered or are being developed by the Company as of either such date (the "Company's Business"); or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executiveemployee, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with ), any individual, corporation, firmcompany, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Company; 's Business, provided, however, that Executive Employee may own, solely as an investment, not more than one percent (1%) % of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States States. In the event of AmericaEmployee's termination as a result of Section 3.8, Employee agrees that the two-year period of non-competition referred to above shall be reduced to one year.
5.1.2 During 7.2 Employee hereby expressly acknowledges, understands and agrees that all documents, records, computer discs and programs, marketing and business plans and studies, and business and financial information (collectively referred to in this section as "confidential information") relating to the Term of this Agreement and during the Termination Period, Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, Business including, without limitation, trade secretsthe names and addresses of the Company's clients and referral sources, trade "know-how"all client records, inventionsfiles, customer listsand other client information, business plansall methods of marketing services, operational setting cases, training programs, fee policies, and management and operating methods, pricing policies, marketing plans, sales plans, identity of suppliers whether they are prepared in whole or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used part by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him Employee or by any other person, are and shall remain the Company are the exclusive property of the Company Company, and shall not be used by him in any way adverse that all such trade secrets are confidential, material, and important to the business and financial success of the Company, and that their disclosure or unauthorized use would seriously and adversely affect the Company's interests. Executive shall Business.
7.3 Employee hereby expressly covenants and agrees that he will not delivereither directly or indirectly, reproduce or in do any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board following either during the term of Directors his employment by the Company, or at any time for a two-year period following termination (or such shorter period following termination as may be described below), except as is necessary to perform his obligations in the course of his employment by the Company:
7.3.1 divulge, disclose or communicate to any person, Company, or entity any of the Company. Executive hereby assigns to 's confidential information; or
7.3.2 use, duplicate or copy any of such confidential information; or
7.3.3 otherwise engage in unfair competition with the Company any rights that he may have in any such trade secret or proprietary informationCompany.
5.2 7.4 If Executive Employee breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.:
5.2.1 Executive 7.4.1 Employee shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to ExecutiveEmployee's benefit which are derived or received by Executive Employee or any person or business entity controlled by Executive Employee resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 7.4.2 Notwithstanding the provisions of subsection 5.2.1 7.4.1 above, Executive Employee acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of this Section 57, the Company Company, shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 7.5 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court arbitrator making such termination determination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 7.6 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar bar, or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive acknowledges that (i) he has a major responsibility for the operation, administration, development and growth of the Company's business, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest interests of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 5.1.a Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of this Agreement (the "Termination Period"), Executive shall not, directly or indirectly, within any state, province or other political subdivision of the United States or any other country in which the Company is conducting business, compete with respect to any services or products of the Company which are either offered or are being developed by the Company (the "Company; 's Business"), or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executiveemployee, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with ), any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Company's Business; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) percent of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of Americaowned corporation.
5.1.2 During 5.1.b During, and for one year after, the Term of this Agreement and during the Termination PeriodTerm, Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier suppliers of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month one year period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.or
Appears in 1 contract
Restrictive Covenants. 5.1 9.1 Executive acknowledges that (i) he has a major responsibility for the operation, administration, administration development and growth of the Company's business, ; (ii) the Company's business is or may become national or international in scope; (iii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, clients; and (iiiiv) the agreements and covenants contained in this Section 5 9 are essential to protect the business interest interests of the Company and that the Company will would not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 9.1.1 Except as otherwise provided for in this Agreement, during the Term term of this Agreement and for a period of twelve (12) months following the termination of and, if this Agreement is terminated for any reason other than pursuant to Section 3.7 hereof, for two years following such date of termination (the "Termination Period"), Executive shall not, directly or indirectly, within any county in any state, province or other political subdivision of the United States, or any other country in which the Company is conducting business as of the effective date hereof, or as of the date of termination, compete with respect to any services or products of the Company which are either offered or are being developed by the Company as of either such date (the "Company's Business"); or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executiveemployee, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with ), any individual, corporation, firmCompany, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Company; 's Business, provided, however, that Executive may own, solely as an investment, not more than one percent (1%) % of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of AmericaStates.
5.1.2 9.1.2 During the Term term of this Agreement and and, if applicable, during the Termination Period, Executive shall not, directly or indirectly, (i) induce solicit for employment or attempt to influence provide services, or employ or engage the services of, any employee of the Company to leave its employ, who was employed by the Company at the time of termination or any neutrals associated with the Company as of such time; (ii) aid or agree to aid any competitor, customer client, or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, ; or (iii) induce or attempt to influence any person or business entity who was a customer client or supplier of the Company during any portion of said period to transact business with a competitor of the Company Company.
9.2 Executive hereby expressly acknowledges, understands and agrees that all documents, records, computer discs and programs, marketing and business plans and studies, and business and financial information (collectively referred to in this paragraph as "confidential information") relating to the Company's business including, without limitation, the names and addresses of the Company's clients and referral sources, all client records, files, and other client information, all methods of marketing services, setting cases, training programs, fee policies, and management and operating methods, whether they are prepared in whole or in part by Executive or by any other person, are and shall remain the exclusive property of the Company, and that all such trade secrets are confidential, material and important to the business and financial success of the Company, and that their disclosure or unauthorized use would seriously and adversely affect the Company's business.
5.1.3 During 9.3 Executive hereby expressly covenants and agrees that he will not either directly or indirectly, do any of the Term following either during the term of this Agreementhis employment by the Company, the Termination Periodor at any time thereafter (or such shorter period following termination a may be described below), if applicable, and thereafter, Executive shall not other than except as is necessary to perform his obligations in the performance course of his duties employment by the Company:
9.3.1 divulge, disclose or communicate to anyone any information about person, Company, or entity any of the affairs Company's confidential information; or
9.3.2 for two years following termination of Executive's employment, directly solicit or cooperate with others to directly solicit, any of the clients, customers or referral sources of the Company, includingor neutrals associated with the Company, without limitationfor the purpose of, trade secretsor in connection with, trade "know-how", inventions, customer lists, any business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company same or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse substantially similar to the Company's interests. Executive shall not deliverbusiness; or
9.3.3 use himself, reproduce duplicate or copy any of such confidential information; or
9.3.4 otherwise engage in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of unfair competition with the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 9.4 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.:
5.2.1 9.4.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 9.4.2 Notwithstanding the provisions of subsection 5.2.1 9.4.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 59, the Company Company, shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 9.5 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination determination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 9.6 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar bar, or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive Xxxxxxxxx acknowledges and agrees that (ia) through his continuing services to the Company, he has a major responsibility for the operation, administration, development will learn valuable trade secrets and growth of other proprietary information relating to the Company's business, ; (iib) his work for Xxxxxxxxx'x services to the Company has brought him are unique in nature; (c) the Company's business is national in scope; and will continue (d) the Company would be irreparably damaged if Xxxxxxxxx was to bring him into close contact with confidential information provide services to any person or entity in violation of the Company and its customers, and (iii) the agreements and covenants restrictions contained in this Section 5 are essential Agreement. Accordingly, as an inducement to protect the business interest of the Company and that the Company will not to enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, Xxxxxxxxx agrees that during the Term of this Agreement and for a one year thereafter (such period of twelve (12) months following the termination of this Agreement (being referred to herein as the "Termination Restricted Period"), Executive Xxxxxxxxx shall not, directly or indirectly, compete with respect to either for himself or for any services other person or products entity, without the prior written consent of the Company which are either offered Company:
(a) anywhere in the United States, engage or are being developed by the Company; or, without limiting the generality of the foregoing, be or becomeparticipate in, or agree to assist, advise or be or becomeconnected with (including as an employee, interested in or associated withowner, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trusteeadvisor, consultant, co-venturer agent or (without limitation by the specific enumeration of the foregoing) otherwise), or permit his name to be used by or render services for, any person or entity engaged in, or making plans to engage in, a business that competes with the business conducted by, or proposed to be conducted by, the Company (a "Competing Business");
(b) with take any individualaction which might divert from the Company or any of its Affiliates (as defined herein) any opportunity (each, corporation, firm, association, partnership, joint venture an "Opportunity") which would be within the scope of the Company's or other such Affiliate's then business entityand shall offer each Opportunity to the Company, which competes with respect the Company may, in its sole discretion, decide to pursue or not;
(c) solicit, attempt to solicit, aid in the solicitation of or accept any services orders from any person or products entity who is or has been a customer of the Company or its Affiliates, at any time during the period beginning one year prior to the date hereof through the Restrictive Period, to purchase products or services from any person or entity which are either offered products or are being developed services could have been supplied or performed, as the case may be, by the Company; providedCompany or its Affiliates (other than from the Company or its Affiliates);
(d) solicit, however, that Executive may own, solely as an investment, not more than one percent (1%) attempt to solicit or aid in the solicitation of any class of securities of person or entity who is or has been a customer, supplier, licensor, licensee or person or entity having any publicly held corporation in competition other business relationship with the Company whose securities are traded on or any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and its Affiliates, at any time during the Termination period beginning one year prior to the date hereof through the Restrictive Period, Executive shall notto cease doing business with or alter its business relationship with the Company or its Affiliates; or
(e) solicit or hire any person or entity who is a director, directly officer, employee, independent contractor or indirectly, (i) induce or attempt to influence any employee agent of the Company or any of its Affiliates to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence perform services for any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for its Affiliates or to terminate his own benefit. Any technique, method, process or technology used by her employment with the Company shall be considered a "trade secret" for the purposes of this Agreementor its Affiliates.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 (a) Executive acknowledges and agrees that the restrictive covenants and other post-termination obligations set forth in the RCA, including without limitation Executive’s obligations relating to confidentiality, non-use and non-disclosure of Confidential Information (ias defined in the RCA), non-solicitation, cooperation, and return of property, are hereby incorporated by reference and shall remain in full force and effect pursuant to their terms to the maximum extent permitted by applicable law, except that the parties expressly agree to modify the RCA by removing Section 6, and each subpart thereto, of the RCA, which shall be of no further force or effect upon the Effective Date (as defined below). Executive represents and warrants that Executive has complied with all provisions of the RCA at all times through the Effective Date. 2 To be determined by the Company at the time of separation.
(b) he has a major responsibility In consideration for the operation, administration, development severance payments and growth benefits set forth in Section 1 of the Company's business, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and Executive agrees for a period of twelve (12) 12 months following after the termination of this Agreement Effective Date (the "Termination “Noncompetition Restricted Period"), Executive shall not, ”) to not directly or indirectly, compete with respect to on Executive’s own behalf or for the benefit of any services other individual or products entity: (i) operate, conduct, engage in, or own (except as a holder of not more than three percent (3%) of the Company which are either offered stock of a publicly held company), or are prepare to operate, conduct, engage in, or own any business that develops, markets, distributes, plans, sells or otherwise provides, or is preparing to develop, market, distribute, plan, sell or otherwise provide, any product or service that is in competition with any of the products or services being developed developed, marketed, distributed, planned, sold or otherwise provided by the Company; or, without limiting Company or its affiliates at the generality of the foregoing, be or becometime of, or agree to be during the 12 months preceding, Executive’s termination from the Company (a “Competing Business”) or become(ii) participate in, interested render services to, or assist any individual or entity that engages in or associated with, a Competing Business in any capacity (whether as a partneran employee, shareholdermanager, ownerconsultant, director, officer, directorcontractor, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture (A) which involve the same or other business entity, which competes with respect to any similar types of services or products of Executive performed for the Company which are either offered or are being developed by at any time during the Company; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) last two years of any class of securities of any publicly held corporation in competition Executive’s employment with the Company whose securities are traded on or (B) in which Executive could reasonably be expected to use or disclose Confidential Information, in each case (i) and (ii) limited to each city, county, state, territory and country in which (x) Executive provided services or had a material presence or influence at any national securities exchange time during Executive’s last two years of employment with the Company or (y) the Company is engaged in or has plans to engage in the United States Competing Business as of Americathe Effective Date. Without limiting the Company’s ability to seek other remedies available in law or equity, if Executive violates this Section 4(b), the Noncompetition Restricted Period shall be extended by one day for each day that Executive is in violation of such provisions, up to a maximum extension equal to the length of the Noncompetition Restricted Period, so as to give the Company the full benefit of the bargained-for length of forbearance.
5.1.2 During (c) Executive’s continued compliance with the Term terms of the RCA (as modified in Section 4(a) above) and the noncompetition obligations set forth in Section 4(b) above (collectively, the “Restrictive Covenants”) is a material condition to receipt of the severance payments and benefits set forth in Section 1 of this Agreement. In the event Executive breaches any part of such Restrictive Covenants, then, in addition to any remedies and enforcement mechanisms set forth in the RCA and this Agreement and during the Termination Period, Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 (including equitable and injunctive remedies), Executive shall account for forfeit any additional consideration owing and pay over shall be obligated to promptly return to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or (within two (2) business entity controlled by Executive resulting from any action or transactions constituting a breach days of any breach) the full gross amount of all severance payments and benefits provided.
(d) If any provision of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company Covenants shall have no adequate remedy at law and shall therefore be entitled determined to enforce each such provision be unenforceable by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity or arbitrator by reason of proving damagesits extending for too great a period of time or over too large a geographic area or over too great a range of activities, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which it shall be given full effectinterpreted to extend only over the maximum period of time, without regard geographic area or range of activities as to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then which it may be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 6.1 Executive acknowledges that (i) he has a major responsibility for the operation, administration, development and growth of the Company's business, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 6 are essential to protect the business interest interests of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 6.1.a Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of this Agreement (the "Termination Period"), Executive shall not, directly or indirectly, within any state, province or other political subdivision of the United States or any other country in which the Company is conducting business, compete with respect to any services or products of the Company which are either offered or are being developed by the Company (the "Company; 's Business"), or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executiveemployee, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with ), any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Company's Business; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) percent of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of Americaowned corporation.
5.1.2 During 6.1.b During, and for one year after, the Term of this Agreement and during the Termination PeriodTerm, Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier suppliers of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month one year period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 6.1.c During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, 6.2 Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, 6.1 (the "Restrictive Covenants") the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, damages or posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 6.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.making
Appears in 1 contract
Restrictive Covenants. 5.1 Executive acknowledges that (ia) he has a major responsibility for During the operation, administration, development and growth of the Company's business, (ii) his work for Executive’s employment with the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve twenty-four (1224) months following the termination of this Agreement thereafter:
(the "Termination Period"), i) The Executive shall not, for the Executive or any third party, except on behalf of the Company or its affiliates, with or without compensation, become engaged by or provide services or advice to, any business that is manufacturing, or preparing to manufacture, or providing, or preparing to provide: (i) flooring products, (ii) products used to prepare floors for flooring products, (iii) products used to maintain floors or flooring products, or (iv) any other products or services provided by the Company in the then-immediately preceding twenty-four (24) month period up to and including the date of the termination of the Executive’s employment with the Company for any reason; provided, however, that this provision shall not restrict the Executive from owning or investing in publicly traded securities, so long as the Executive’s aggregate holdings in such company do not exceed 2% of the outstanding equity of such company and such investment is passive;
(ii) The Executive shall not, for the Executive or any third party, except on behalf of the Company or its affiliates, (i) (A) solicit business from any person who was a customer of the Company or any of its affiliates during the period of the Executive’s employment hereunder or who was a customer within the six-month period prior to such solicitation, or (B) solicit potential customers who are or were identified through leads developed during the course of the Executive’s employment with the Company, in each case, with whom the Executive was involved as part of the Executive’s job responsibilities during the Executive’s employment with the Company, or regarding whom the Executive learned confidential information during the Executive’s employment with the Company, or (ii) otherwise divert or attempt to divert any existing business of the Company or any of its affiliates; and
(iii) The Executive shall not, for the Executive or any third party, except on behalf of the Company or its affiliates, (i) solicit, induce, recruit or cause another person in the employment of the Company or any of its affiliates to terminate the employment of, or (ii) hire or retain, in each case, any person who is, or within the six-month period prior to such hiring or retention was, an employee of the Company or any of its affiliates.
(b) The Executive agrees that he shall not, while employed with the Company or at any time thereafter for any reason, in any fashion, form or manner, either directly or indirectly, compete with respect divulge, disclose or communicate to any services person, firm, corporation or products other business entity, in any manner whatsoever, any confidential information or trade secrets concerning the business of the Company which are either offered or are being developed by the Company; or, including, without limiting the generality of the foregoing, be any customer lists or becomeother customer identifying information, the techniques, methods or systems of the Company’s operation or management, any information regarding its financial matters, or agree any other material information concerning the business of the Company, its manner of operation, its plans or other material data. The provisions of this Section 12(b) shall not apply to be (i) information that is public knowledge other than as a result of disclosure by the Executive in breach of this Section 12(b); (ii) information disseminated by the Company to third parties in the ordinary course of business; (iii) information lawfully received by the Executive from a third party who, based upon inquiry by the Executive, is not bound by a confidential relationship to the Company, or become(iv) information disclosed under a requirement of law or as directed by applicable legal authority having jurisdiction over the Executive.
(c) The Executive agrees that he will not, interested in while employed with the Company or associated withat any time thereafter for any reason, in any capacity (whether as a partnerfashion, shareholderform or manner, ownereither directly or indirectly, officerdisparage or criticize the Company, directoror otherwise speak of the Company, executive, principal, agent, creditor, trustee, consultant, co-venturer in any negative or otherwise) unflattering way to anyone with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect regard to any services matters relating to the Executive’s employment by the Company or products the business or employment practices of the Company. The Company agrees that it will direct the executive officers of the Company at the time of the Executive’s termination of employment with the Company to not, in any fashion, form or manner, either directly or indirectly, disparage or criticize the Executive or otherwise speak of the Executive in any negative or unflattering way to anyone with regard to any matters relating to the Executive’s employment with the Company.
(d) On the Executive’s last day of employment with the Company, the Executive will return all Company property, including, without limitation, all documents (regardless of form) which are contain confidential information or trade secrets of the Company, and the Executive shall not retain any copies thereof. Executive shall deliver to the Company a document certifying his compliance with this Section 12(d).
(e) Pursuant to 18 U.S.C. § 1833(b), the Executive will not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret of the Company that (i) is made (A) in confidence to a Federal, State, or local government official, either offered directly or are being developed indirectly, or to the Executive’s attorney and (B) solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding. If the Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, the Executive may disclose the trade secret to the Executive’s attorney and use the trade secret information in the court proceeding if the Executive (x) files any document containing the trade secret under seal, and (y) does not disclose the trade secret, except pursuant to court order. Nothing in this Agreement, or any other agreement that the Executive has with the Company, is intended to conflict with 18 U.S.C. § 1833(b) or create liability for disclosures of trade secrets that are expressly allowed by such section. Further, nothing in this Agreement or any other agreement that the Executive has with the Company prohibits (1) internal communications between and among the employees of the Company with a job-related need to know about matters related to the administration of this Agreement, (2) voluntary communications by employees or former employees with the Securities and Exchange Commission or other authorities regarding possible violations of law or from recovering a Commission whistleblower award as provided under Section 21F of the Securities Exchange Act of 1934, or (3) the Executive responding to a valid subpoena, court order or similar legal process; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and during the Termination Period, Executive shall not, directly or indirectly, (i) induce or attempt prior to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of making any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of disclosure pursuant to this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"12(e)(3), the Company Executive shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to provide the Company at law with written notice of the subpoena, court order or similar legal process sufficiently in equityadvance of such disclosure to afford the Company a reasonable opportunity to challenge the subpoena, court order or similar legal process.
5.2.1 (f) The Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees understands that in the event of a violation or threatened violation of any provision of the provisions of this Section 512, the Company shall have no adequate remedy at law and shall therefore be entitled the right to enforce each such provision by temporary or permanent (i) seek injunctive or mandatory relief obtained relief, in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice addition to any other existing rights provided in this Agreement or by operation of law, without the requirement of posting bond and (ii) stop making any future payments or providing benefits under this Agreement. The remedies which may provided in this Section 12(f) shall be available in addition to any legal or equitable remedies existing at law or provided for in equity.
5.3 any other agreement between the Executive and the Company or any of its affiliates, and shall not be construed as a limitation upon, or as an alternative or in lieu of, any such remedies. If any provision of the Restrictive Covenants, or any part thereof, this Section 12 is held to be invalid excessively broad as to duration, activity or unenforceablesubject, it is the same shall not affect the remainder desire of the covenant or covenants, which shall Company and the Executive that such provisions be given full effect, without regard construed by limiting and reducing them so as to be enforceable to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall maximum extent allowed by applicable law and then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenantsfully enforced as so modified. In the event that the courts of any one or more of such jurisdictions the provisions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope be held to be invalid, illegal or otherwiseunenforceable, it is the intention desire of the parties hereto Company and the Executive that such determination the validity, legality and unenforceability of the remaining provisions shall not bar or in any way affect be affected or impaired thereby.
(g) The Executive acknowledges that the Company's right provisions of Section 12 shall extend to any business that becomes an affiliate of or successor to the relief provided above Company or any of its affiliates on account of a Change in Control or otherwise.
(h) The provisions of this Section 12 shall survive any termination of the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenantsTerm.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive acknowledges that 6.1 For the purpose of assuring to the Investors the full benefit of the business and goodwill of the Group and as part of the inducement to the Investors entering into the Subscription Agreement, each of the Founders hereby undertakes to the Company and to each of the Investors that, during the Relevant Period and for such period as will expire on the later of either (i) he has a major responsibility for two years from the operation, administration, development and growth last day of the Company's businessRelevant Period in respect of a Founder, or (ii) his work for such date after the Company has brought him and will continue to bring him into close contact with confidential information Relevant Period at which the Investors hold Shares representing less than 5% of the share capital of the Company and its customers, and at the date hereof (iii) save that any reduction in Shares held by the agreements and covenants contained in this Section 5 are essential to protect Investors below the business interest aforesaid 5% threshold as a direct result of the Company Investors being required to participate in a Drag Along Sale, that is initiated by other Initial Shareholders, shall be ignored and that the Company will not enter into Investors’ shareholding shall be deemed to be 5% for the purposes of this Agreement but for clause after such agreements Drag Along Sale) (“Restriction Period”), neither it/he nor any of its/his Associates will, whether directly or indirectly and covenants. Accordinglyeither alone or in conjunction with, the Executive covenants or on behalf of, any other person, firm or company and agrees whether as followsprincipal, shareholder, director, employee, agent, consultant, partner or otherwise:
5.1.1 Except as otherwise provided for 6.1.1 be concerned with, engaged or interested in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of this Agreement (the "Termination Period"), Executive shall notany business in any manner, directly or indirectly, compete which is in direct competition with respect the business carried on by any Group Company in Hong Kong or in the PRC or anywhere in the world (“Territory”) at any time during the Restriction Period;
6.1.2 canvass, solicit or approach or cause to be canvassed, solicited or approached, any person in any manner in the Territory for orders or accept, receive or process any orders from any person who is or has been during the Restriction Period a customer or client of any Group Company where the orders relate to goods and/or services which are competitive with or products of the type supplied by any Group Company which are either offered at any time during the Relevant Period or are being developed the Restriction Period; or
6.1.3 solicit or entice away, or endeavour to solicit or entice away, any employee or officer of any Group Company.
6.2 For the purpose of assuring to the Initial Shareholders the full benefit of the business and goodwill of the Group and as part of the inducement to the Initial Shareholders investing in the Group, each of Xx. Xxxx and Xx. Xxxx hereby undertakes and warrants (as the case may be) to the Company and each of the Initial Shareholders that:
6.2.1 the current scope of business of Beijing Ninetowns Yadi Wall Paper Co., Ltd. is not, and will not be expanded into any business that would be, in direct competition with the business carried on by the Company; orGroup (from time to time);
6.2.2 the current scope of business of Beijing Ninetowns Import & Export e-Commerce Software Co., without limiting the generality of the foregoingLtd. is not, and will not be or become, or agree to be or become, interested in or associated withexpanded into any business that would be, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) direct competition with any individual, corporation, firm, association, partnership, joint venture or other the business entity, which competes with respect to any services or products of the Company which are either offered or are being developed carried on by the Company; providedGroup (from time to time);
6.2.3 the current scope of business of Beijing Xinchengtong Digital Technology Co., howeverLtd. is not, and will not be expanded into any business that Executive may ownwould be, solely as an investment, not more than one percent in direct competition with the business carried on by the Group (1%) from time to time);
6.2.4 in the event that the Group wishes to expand into a new line of any class of securities of any publicly held corporation business from the date hereof that would being it in competition with the Company whose securities are traded business carried on any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and during the Termination Period, Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenantsentities referred to in clauses 6.2.1 to 6.2.3, procure that such entity(ies) will all such necessary acts and execute all documents to remove itself or themselves from being in direct competition with the Group.
5.2.2 Notwithstanding 6.3 Each undertaking in clauses 6.1 and 6.2 shall be treated as independent of the provisions of subsection 5.2.1 aboveother undertakings so that, Executive acknowledges and agrees that in the event of a violation or threatened violation of if any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, them is held to be invalid or unenforceableunenforceable for any reason, the same remaining undertakings shall be valid to the extent that they are not affected.
6.4 Each Founder hereby expressly acknowledges and declares that it/he has duly considered the undertakings set out in clauses 6.1 and 6.2, so far as they apply to them, and considers that they are reasonable in the circumstances, and warrants and undertakes to each of the Investors that it/he shall not affect challenge or query the remainder validity and enforceability of these undertakings.
6.5 Each of the covenant or covenantsundertakings set out in clauses 6.1 and 6.2 is for the benefit of each Investor separately, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if and any of the Restrictive CovenantsInvestors may enforce such undertakings independently regardless of whether the other Shareholders are or intend to enforce such undertakings or have given or intend to give any waiver in relation thereof.
6.6 For the purposes of this clause 6, “Relevant Period” means, in relation to Jitter Bug, the period during which it has any direct or indirect interest (legal or beneficial) in the issued share capital of any part thereof, is held to be unenforceable because of the duration of such provision or the area covered therebyGroup Companies, and in relation to Xx. Xxxx and Xx. Xxxx, the parties hereto agree that period during which he/she is a shareholder, Director, employee and/or has any direct or indirect interest (legal or beneficial) in the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts issued share capital of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenantsGroup Companies.
Appears in 1 contract
Samples: Share Subscription Agreement (Ninetowns Internet Technology Group Co LTD)
Restrictive Covenants. 5.1 Executive Xxxxxxx acknowledges and agrees that (ia) through his continuing services to the Company, he has a major responsibility for the operation, administration, development will learn valuable trade secrets and growth of other proprietary information relating to the Company's business, ; (iib) his work for Xxxxxxx'x services to the Company has brought him are unique in nature; (c) the Company's business is national in scope; and will continue (d) the Company would be irreparably damaged if Xxxxxxx was to bring him into close contact with confidential information provide services to any person or entity in violation of the Company and its customers, and (iii) the agreements and covenants restrictions contained in this Section 5 are essential Agreement. Accordingly, as an inducement to protect the business interest of the Company and that the Company will not to enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, Xxxxxxx agrees that during the Term of this Agreement and for a one year thereafter (such period of twelve (12) months following the termination of this Agreement (being referred to herein as the "Termination Restricted Period"), Executive Xxxxxxx shall not, directly or indirectly, compete with respect to either for himself or for any services other person or products entity, without the prior written consent of the Company which are either offered Company:
(a) anywhere in the United States, engage or are being developed by the Company; or, without limiting the generality of the foregoing, be or becomeparticipate in, or agree to assist, advise or be or becomeconnected with (including as an employee, interested in or associated withowner, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trusteeadvisor, consultant, co-venturer agent or (without limitation by the specific enumeration of the foregoing) otherwise), or permit his name to be used by or render services for, any person or entity engaged in, or making plans to engage in, a business that competes with the business conducted by, or proposed to be conducted by, the Company (a "Competing Business");
(b) with take any individualaction which might divert from the Company or any of its Affiliates (as defined herein) any opportunity (each, corporation, firm, association, partnership, joint venture an "Opportunity") which would be within the scope of the Company's or other such Affiliate's then business entityand shall offer each Opportunity to the Company, which competes with respect the Company may, in its sole discretion, decide to pursue or not;
(c) solicit, attempt to solicit, aid in the solicitation of or accept any services orders from any person or products entity who is or has been a customer of the Company or its Affiliates, at any time during the period beginning one year prior to the date hereof through the Restrictive Period, to purchase products or services from any person or entity which are either offered products or are being developed services could have been supplied or performed, as the case may be, by the Company; providedCompany or its Affiliates (other than from the Company or its Affiliates);
(d) solicit, however, that Executive may own, solely as an investment, not more than one percent (1%) attempt to solicit or aid in the solicitation of any class of securities of person or entity who is or has been a customer, supplier, licensor, licensee or person or entity having any publicly held corporation in competition other business relationship with the Company whose securities are traded on or any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and its Affiliates, at any time during the Termination period beginning one year prior to the date hereof through the Restrictive Period, Executive shall notto cease doing business with or alter its business relationship with the Company or its Affiliates; or
(e) solicit or hire any person or entity who is a director, directly officer, employee, independent contractor or indirectly, (i) induce or attempt to influence any employee agent of the Company or any of its Affiliates to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence perform services for any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for its Affiliates or to terminate his own benefit. Any technique, method, process or technology used by her employment with the Company shall be considered a "trade secret" for the purposes of this Agreementor its Affiliates.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 (a) The Executive acknowledges agrees that during the Non-Competition Period (iand, as to paragraphs (3) and (4) of this Section 5(a), at any time thereafter) he has a major responsibility for the operation, administration, development and growth of the Company's business, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of this Agreement (the "Termination Period"), Executive shall not, directly or indirectly, compete with respect to do or suffer any services or products of the Company which are either offered following:
(1) Own, manage, control or are being developed by participate in the Company; orownership, without limiting the generality of the foregoing, be management or becomecontrol of, or agree to be employed or become, interested in engaged by or otherwise affiliated or associated (collectively, "Employed") as a consultant, independent contractor or otherwise with, in any capacity (whether as a partnerother corporation, shareholderpartnership, owner, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporationproprietorship, firm, association, partnership, joint venture or other business entity, or otherwise engage in any business, which is engaged in any manner in, or otherwise competes with respect to any services or products with, the business of the Company which are either offered or are being developed by the Company; provided, however, that Executive may own, solely as an investment, not more than one percent any of its affiliates (1%a "Prohibited Business") of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and during the Termination Period, Executive shall not, directly America or indirectly, (i) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid countries in Europe or agree to aid any competitor, customer or supplier of Israel in which the Company or any of its affiliates is doing business (a "Competing Business") for so long as this Section 5(a)(1) shall remain in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aideffect, or (iii) induce or attempt to influence nor solicit any person or business entity who that was at the time of the Executive's termination of employment, or within one year prior thereto, a customer or supplier of the Company during or any portion of said period its affiliates; provided, however, that, notwithstanding the foregoing, the Executive shall not be deemed to transact be Employed by a Competing Business (i) by reason of his activities with respect to the Dana Xxxxxxxx xxxiness, based on such activities and such business with a competitor as each exists as of the Company in Company's business.
5.1.3 During the Term date of this Agreement, or (ii) if the Termination PeriodBoard or a committee of the Board determines that the Executive has established by clear and convincing evidence all of the following: (A) such entity (including its affiliates in aggregate) does not derive Material Revenues (as defined below) from the aggregate of all Prohibited Businesses, (B) such entity (including its affiliates in aggregate) is not a Competitor (as defined below) of the Company and its affiliates and (C) Executive has no direct responsibility for or otherwise with respect to any Prohibited Business. For purposes of this paragraph (1), Material Revenues shall mean that 5% or more of the revenues of the entity (including its affiliates in aggregate) are derived from the aggregate of all Prohibited Businesses; an entity shall be deemed a Competitor of the Company and its affiliates if applicablethe combined gross receipts of the entity (including its affiliates in aggregate) from any Prohibited Business is more than 25% of the gross receipts of the Company and its affiliates in such Prohibited Business; and an "affiliate" of an entity is any entity controlled by, and thereaftercontrolling or under common control with the entity;
(2) Employ, Executive shall not other than assist in employing, or otherwise associate in business with any present employee, officer or agent of the performance of his duties disclose to anyone Company or its affiliates;
(3) Induce any information about the affairs person who is an employee, officer or agent of the Company, includingor any member of the Company or its affiliates, without limitationto terminate said relationship; and
(4) Disclose, trade secretsdivulge, trade "know-how"discuss, inventionscopy or otherwise use or suffer to be used in any manner, in competition with, or contrary to the interests of, the Company, or any member of the Company or its affiliates, the customer lists, business plans, operational manufacturing and marketing methods, pricing policiesproduct research or engineering data, marketing plansvendors, sales planscontractors, identity of suppliers or customers, sales, profits or other financial information, which is confidential to business plans and methods or other trade secrets of the Company, or any member of the Company or is not generally known in its affiliates, it being acknowledged by the relevant trade, nor shall Executive make use of any that all such information for his own benefit. Any techniqueregarding the business of the Company or its affiliates compiled or obtained by, methodor furnished to, process the Executive while the Executive shall have been employed by or technology used associated with the Company is confidential information and the Company's exclusive property (it being understood, however, that information publicly disclosed by the Company shall not be considered a "trade secret" for subject to this Section 5(a)(4), provided that such information may not be used in connection with any of the purposes activities prohibited under paragraphs (1) and (2) of this AgreementSection 5(a) for so long as such clauses remain in effect). For purposes hereof, the Non-Competition Period shall mean the Employment Period and the period thereafter during which Termination Payments are being made, provided, however, if this Agreement is terminated following a Change in Control under circumstances described in Section 4(f), then the Non-Competition Period shall end immediately upon such termination.
5.1.4 (b) The Executive expressly agrees and understands that the remedy at law for any breach by him of any of the provisions of this Section 5 will be inadequate and that damages flowing from such breach are not readily susceptible to being measured in monetary terms. Accordingly, it is acknowledged that upon adequate proof of the Executive's violation of any legally enforceable provision of this Section 5, the Company shall be entitled to immediate injunctive relief and may obtain a temporary order restraining any threatened or further breach. Nothing in this Section 5 shall be deemed to limit the Company's remedies at law or in equity for any breach by the Executive of any of the provisions of this Section 5 which may be pursued or availed of by the Company.
(c) In the event the Executive shall violate any legally enforceable provision of this Section 5 as to which there is a specific time period during which he is prohibited from taking certain actions or from engaging in certain activities, as set forth in such provision, then, such violation shall toll the running of such time period from the date of such violation until such violation shall cease; provided, however, the Company shall seek appropriate remedies in a reasonably prompt manner after discovery of a violation by the Executive.
(d) The Executive has carefully considered the nature and extent of the restrictions upon him and the rights and remedies conferred upon the Company under this Section 5, and hereby acknowledges and agrees that all know-howthe same are reasonable in time and territory, documentsare designed to eliminate competition which otherwise would be unfair to the Company, reportsare designed to not stifle the inherent skill and experience of the Executive, planswould not operate as a bar to the Executive's sole means of support, proposals, marketing and sales plans, client lists, client files and materials made by him or by are fully required to protect the Company are the property legitimate interests of the Company and shall do not be used by him in any way adverse confer a benefit upon the Company disproportionate to the Company's interests. Executive shall not deliver, reproduce or in detriment to the Executive.
(e) If any way allow such documents or things to be delivered or used by decision maker determines that any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have covenants contained in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of this Section 5.1 5 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration or geographical scope of such provision or the area covered therebyprovision, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area or scope of such provision, as the case may be, shall be reduced so that such provision becomes enforceable and, in its reduced form, such provision shall then be enforceableenforceable and shall be enforced.
5.4 (f) The parties hereto Company and the Executive intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such the Restrictive Covenants. In the event that If the courts of any one or more of or such jurisdictions shall hold such the Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto Company and the Executive that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions jurisdiction within the geographical scope of such Restrictive Covenants, Covenants as to breaches of such covenants Restrictive Covenants in such other respective jurisdictions, the above covenants such Restrictive Covenants as they relate to each jurisdiction jurisdictions being, for this purpose, severable into severable, diverse and independent covenants, subject, where appropriate, to the doctrine of RES JUDICATA.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive Wood acknowledges and agrees that (ia) through his continuing services to the Company, he has a major responsibility for the operation, administration, development will learn valuable trade secrets and growth of other proprietary information relating to the Company's business, ; (iib) his work for Wood's services to the Company has brought him are unique in nature; (c) the Company's business is national in scope; and will continue (d) the Company would be irreparably damaged if Wood was to bring him into close contact with confidential information provide services to any person or entity in violation of the Company and its customers, and (iii) the agreements and covenants restrictions contained in this Section 5 are essential Agreement. Accordingly, as an inducement to protect the business interest of the Company and that the Company will not to enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, if the Company terminates Wood for any reason other than for cause or Wood terminates this Agreement for any reason, Wood agrees that during the Term of this Agreement and for a one year thereafter (such period of twelve (12) months following the termination of this Agreement (being referred to herein as the "Termination Restricted Period"), Executive Wood shall not, directly or indirectly, compete with respect to either for himself or for any services other person or products entity, without the prior written consent of the Company which are either offered Company:
(a) anywhere in the United States, engage or are being developed by the Company; or, without limiting the generality of the foregoing, be or becomeparticipate in, or agree to assist, advise or be or becomeconnected with (including as an employee, interested in or associated withowner, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trusteeadvisor, consultant, co-venturer agent or (without limitation by the specific enumeration of the foregoing) otherwise), or permit his name to be used by or render services for, any person or entity engaged in, or making plans to engage in, a business capacity that directly competes with the business conducted by, or proposed to be conducted by, the Company (a "Competing Business");
(b) with take any individualaction which might divert from the Company or any of its Affiliates (as defined herein) any opportunity (each, corporation, firm, association, partnership, joint venture an "Opportunity") which would be within the scope of the Company's or other such Affiliate's then business entityand shall offer each Opportunity to the Company, which competes with respect the Company may, in its sole discretion, decide to pursue or not;
(c) solicit, attempt to solicit, aid in the solicitation of or accept any services orders from any person or products entity who is or has been a customer of the Company or its Affiliates, at any time during the period beginning one year prior to the date hereof through the Restrictive Period, to purchase products or services from any person or entity which are either offered products or are being developed services could have been supplied or performed, as the case may be, by the Company; providedCompany or its Affiliates (other than from the Company or its Affiliates);
(d) solicit, however, that Executive may own, solely as an investment, not more than one percent (1%) attempt to solicit or aid in the solicitation of any class of securities of person or entity who is or has been a customer, supplier, licensor, licensee or person or entity having any publicly held corporation in competition other business relationship with the Company whose securities are traded on or any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and its Affiliates, at any time during the Termination period beginning one year prior to the date hereof through the Restrictive Period, Executive shall notto cease doing business with or alter its business relationship with the Company or its Affiliates; or
(e) solicit or hire any person or entity who is a director, directly officer, employee, independent contractor or indirectly, (i) induce or attempt to influence any employee agent of the Company or any of its Affiliates to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence perform services for any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for its Affiliates or to terminate his own benefit. Any technique, method, process or technology used by her employment with the Company shall be considered a "trade secret" for the purposes of this Agreementor its Affiliates.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive acknowledges The Seller agrees that (i) he has a major responsibility for neither it nor its affiliates will, until at least two years after the operation, administration, development and growth Closing of the Company's Transaction, (a) engage in the staffing services business, (ii) his work for as that business has been conducted by the Company has brought him (the “Company Business”), but the Seller and its subsidiaries may and will continue to bring him into close contact with confidential information sell computer hardware, software, bandwidth, professional services, and related goods and services, including network engineering, maintenance, help desk, software development and business process engineering (“Seller’s Business”) and to the extent that the sale or service of power supplies is an incidental aspect of Seller’s Business, neither Seller nor any of its subsidiaries shall in any way be restricted from engaging in such business, and Seller may engage in Seller’s Business with, and sell goods and services to, any current, prior, or future customer or prospect of the Company and Company, (b) directly or indirectly, encourage, induce, attempt to induce, solicit or attempt to solicit (on such person’s or entity’s own behalf or on behalf of any other person or entity) any individual or entity to terminate his, her or its customersservice (whether as an employee or independent contractor) with the Company, and or (iiic) the agreements and covenants contained in this Section 5 are essential induce, attempt to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordinglyinduce, the Executive covenants and agrees as follows:
5.1.1 Except as solicit, or otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of this Agreement (the "Termination Period"), Executive shall notcause, directly or indirectly, compete with respect to any services or products of the “Company Customer” (which are either offered or are being developed by the Company; or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Company; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America.
5.1.2 During the Term of shall include for this Agreement and during the Termination Period, Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence purpose any person or business entity who was a Company customer within the previous 18 months or supplier who has currently received a proposal to provide goods or services from the Company) to (i) cease being a client or customer of the Company during any portion of said period or to transact business with not become a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs client or customer of the Company, includingor (ii) to reduce the amount of business of such Company Customer from the Company, without limitationor otherwise to discontinue or alter, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way manner adverse to the Company's interests, such business relationship. Executive Buyer agrees that it will not engage in Seller’s Business, except to the extent that an incidental aspect of the Company Business may overlap with Seller’s Business, and neither Buyer, nor the Company, shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to restricted from engaging in the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable Business because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceableincidental services.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive acknowledges that 1.1 The Undersigneds acknowledge and agree that: (i) he has a major responsibility for the operationbusiness contacts, administrationcustomers, development suppliers, technology, know-how, trade secrets, marketing and growth distribution techniques, and other aspects of the Company's business of the LLC have been of value to the LLC, and have provided the LLC (and will hereafter provide the Purchaser) with substantial competitive advantage in the operation of its business, and (ii) by virtue of their previous relationships with the LLC as officers, managers, Interestholders, employees, and/or affiliates, the Undersigneds have detailed knowledge and possess confidential information concerning the business and operations of the LLC.
1.2 It is hereby agreed that none of the Undersigneds shall, directly, or indirectly, for itself or themselves, or through or on behalf of any other person or entity including, without limitation, family members, trusts, or other business or estate planning arrangements engage in the following:
(a) at any time, divulge, transmit, or otherwise disclose or cause to be divulged, transmitted, or otherwise disclose, any business contacts, client, distributor, or customer lists, technology, know-how, traded secrets, marketing techniques, supplier contacts, contracts, or other confidential or proprietary information of the LLC of whatever nature existing on or prior to the date hereof (provided, however, that for purposes hereof, information shall not be considered to be confidential or proprietary if (i) it is a matter of common knowledge or public record, (ii) his work for it is generally known in the Company has brought him and will continue to bring him into close contact with confidential information of industry in which the Company and its customersBusiness is engaged, and or (iii) the agreements and covenants contained in Undersigneds can demonstrate that such information was already known to the recipient thereof other than by reason of any breach of any obligation under this Section 5 are essential to protect Agreement or any other confidentiality or non-disclosure agreement);
(b) at any time during the business interest period of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Purchase Agreement and for a period of twelve (12) months two years following the termination of this the Purchase Agreement for any reason (the "Termination Restrictive Period"), Executive shall notinvest, directly or indirectlycarry on, compete with respect to any services or products of the Company which are either offered or are being developed by the Company; or, without limiting the generality of the foregoing, be or becomeengage, or agree to be or becomebecome involved, interested in or associated witheither as an employee, in any capacity (whether as a partneragent, shareholder, owneradvisor, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products stockholder (excluding ownership of the Company which are either offered or are being developed by the Company; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) 3% of any class the outstanding shares of securities of any a publicly held corporation Corporation if such ownership does not involve managerial or operational responsibility), manager, partner, joint venture, participant, or consultant, in competition with any business enterprise (other than the Company whose securities are traded on Purchaser or any national securities exchange of its subsidiaries, affiliates, successors, or assigns) which (i) is located or operating, or soliciting customers located in the United States of America.
5.1.2 During the Term of this Agreement America or any other country in which Purchaser sells products, and during the Termination Period, Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid is or agree to aid becomes, at any competitortime during the Restrictive Period, customer engaged in the manufacture, assembly, sale, marketing, advertising, and distribution of golf balls or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term golf related products. For purposes of this Agreement, golf related products shall mean products that are marketed or sold by Purchaser; and
(c) at any time during the Termination PeriodRestrictive Period initiate contact with any employee, if applicableconsultant, and thereafteror independent contractor of Purchaser for the purpose of hiring away such employee, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs consultant, or independent contractor from Purchaser, or solicit customers of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, Purchasers.
1.3 The parties acknowledge that Xxxx Xxxxxxxx is currently working with Admark Systems which is confidential has some involvement with the golfing industry. Xx. Xxxxxxxx may continue to work with Admark for so long as the Company or is does not generally known in directly compete with the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this AgreementPurchaser's business.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Samples: Non Competition and Non Disclosure Agreement (Renaissance Golf Products Inc)
Restrictive Covenants. 5.1 Executive acknowledges that (a) To further induce Buyer to purchase the Purchased Shares, and in consideration of the payments by Buyer pursuant to this Agreement, each Seller agrees, separately and not jointly, to the restrictive covenants contained herein:
(i) he has a major responsibility for the operation, administration, development and growth of the Company's business, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest of the Company and Each Seller hereby agrees that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this AgreementSeller shall not, during the Term period beginning on the Closing Date and ending on the third anniversary of this Agreement and for a period of twelve (12) months following the termination of this Agreement Closing Date (the "Termination “Restricted Period"”), Executive shall not, directly or indirectly, compete with respect to any services or products of the Company which are either offered or are being developed by the Company; orfor such Seller’s own account, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, ownerpartner or joint venturer with any other Person or as an employee, officer, director, executive, principal, agent, creditormanager, trustee, consultant, co-venturer representative or otherwise) with member of any individual, corporation, firm, associationlimited liability company, partnership, joint venture association or other business entityPerson (i) compete with or (ii) own, which competes with respect to manage, operate, control or participate in the ownership (other than (A) as a minority shareholder of any services corporation or products other entity the securities of the Company which are either offered publicly held or are being developed by the Company; providedtraded or (B) as a passive investor, however, that Executive may own, solely as an investment, holding not more than one percent (1%) 2% of any class of securities equity securities, of such an entity which is not publicly traded), management, operation or control of any publicly held corporation in competition with corporation, limited liability company, partnership, proprietorship, association or other Person that competes with, the Company whose securities are traded on by providing or offering to provide to any national securities exchange in Person within the United States of America(the “Restricted Territory”), any services or goods that are the same or substantially similar to, and in competition with, the Company Products offered by the Company in the Business during the 18 months prior to the Closing Date.
5.1.2 During (ii) Each Seller hereby agrees that such Seller shall not, within the Term of this Agreement Restricted Territory and during the Termination Restricted Period, Executive shall not, directly or indirectly, for such Seller’s own account, as a partner or joint venturer with any other Person or as an employee, officer, agent, manager, representative or member of any corporation, limited liability company, partnership, association or other Person, (iA) solicit, induce or attempt to influence any Person who was a Customer of the Company within 18 months prior to the Closing Date to discontinue, reduce the extent of, or otherwise interfere with such Person’s relationship with the company; or (B) transact business with any Customer of the Company if the purpose of such transaction is to provide any services or goods that are the same or substantially similar to, and in competition with, the Company Products offered by the Company in the Business during the 18 months prior to the Closing Date. For purposes of this Agreement, a Customer of the Company is a Person who purchased Company Products from the Company during the 18 months prior to the Closing Date.
(iii) Each Seller hereby agrees that such Seller shall not, during the period beginning on the Closing Date and ending on the third anniversary of the Closing Date, directly or indirectly, for such Seller’s own account, as a partner or joint venturer with any other Person or as an employee, officer, agent, manager, representative or member of any corporation, limited liability company, partnership association or other Person, recruit or solicit any person who was an employee of the Company as of the Closing Date to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in for the purpose of working for any attempt to hire Person, unless such employee’s employment has been terminated by the Company after Closing or more than 180 days shall have passed since the employee’s voluntary termination of his or her employment with the Company.
(iv) Each Seller hereby agrees that such Seller shall not, within the Restricted Territory and during the Restricted Period, directly or indirectly, for such Seller’s own account, as a partner or joint venturer with any other Person or as an employee, officer, agent, manager, representative or member of any corporation, limited liability company, partnership, association or other Person, solicit, induce or influence any person who shall have been employed by was a Vendor of the Company, Supplier of the Company, or lessor or landlord of the Company within the twelve (12) month period preceding such requested aid18 months prior to the Closing Date to discontinue, reduce the extent of, discourage the development of, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of otherwise interfere with such Person’s relationship with the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term . For purposes of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs a Vendor or Supplier of the CompanyCompany is a Person who sold or provided, includingin exchange for compensation, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers services or customers, sales, profits or other financial information, which is confidential goods to the Company during the 18 months prior to the Closing Date that are essential to the manufacturing and production of Company Products. The terms of this Section 9.1(a)(iv) shall not apply to providers or is sellers of non-essential, ancillary items, such as office supplies and other items typically purchased by persons or entities not generally known engaged in the relevant trade, nor Business.
(b) Each of the covenants and agreements by the Sellers contained in Section 9.1(a) shall Executive make use be deemed to be and construed as a covenant and agreement independent of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes other provision of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive Each Seller acknowledges and agrees with respect to himself that the covenants set forth in Section 9.1(a) are reasonable and necessary for the protection of the Business and the business of Buyer, that Buyer shall sustain irreparable injury in the event of a violation breach or threatened violation breach by such Seller of any of such covenants and agreements and that Buyer does not and shall not have an adequate remedy at law for any such breach or threatened breach. Accordingly, each Seller consents and agrees for such Seller that, if such Seller breaches or threatens to breach any such covenant or agreement, Buyer shall be entitled to immediate injunctive relief and to specific performance and that no Seller shall assert in any action or Proceeding the defense or claim that Buyer has an adequate remedy at law. The foregoing shall not, however, be deemed to limit the remedies of Buyer for any such breach or threatened breach. Any claims with respect to a breach of the provisions set forth in Section 9.1(a) must be made (if at all) within 18 months’ after the expiration of the applicable restricted period.
(c) Each Seller covenants and agrees that, if such Seller violates any of the covenants or agreements set forth in Section 9.1(a), in addition to any and all other remedies available to Buyer, Buyer shall be entitled to an accounting and repayment of all profits, compensation or benefits which any Seller, directly or indirectly, has realized or may realize in connection with any such violation; reasonable attorney’s fees and costs; and such remedies shall be in addition to and not in limitation of any injunctive relief, and/or other rights or remedies to which Buyer is or may be entitled at law or in equity or under this Agreement.
(d) In the event that any of the provisions of Section 59.1(a), the Company Section 9.1(b) or Section 9.1(c), shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same remaining provisions of such Sections shall not affect the remainder of the covenant or covenants, which shall nevertheless continue to be given full effect, without regard to valid and enforceable as though the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenantsparts had not been included therein. In the event that the courts scope of the restricted activities set forth in this Section 9.1 shall be found by a court, as set forth in Section 11.12, to exceed the maximum restriction on activities such court deems reasonable and enforceable, such scope of activities or geographical area shall be modified by the court and shall be deemed to become and thereafter shall be the maximum scope of activities which such court deems reasonable and enforceable.
(e) Each Seller has carefully read and considered the provisions of Section 9.1(a), Section 9.1(b), Section 9.1(c) and Section 9.1(d) and, having done so, agrees that the restrictions set forth in such Sections are fair and reasonable and are reasonably required for the protection of the interests of Buyer and its officers, directors, and other employees and that such restrictions are not violative of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenantspublic policy.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive acknowledges that (i) he has a major responsibility for During the operationRestricted Period, administration, development and growth of the Company's business, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customerseach Restricted Party shall not, and (iii) the agreements and covenants contained in this Section 5 are essential shall cause his or her Affiliates to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of this Agreement (the "Termination Period"), Executive shall not, directly or indirectly:
(1) invest in, compete own, manage, operate, finance, control, be employed by, or participate in the ownership, management, operations, financing or control of, lend its name or a similar name to, lend its credit to, render services or advice to, or otherwise assist, any Person (other than a Company Entity) that that engages in, owns, invests in, operates, manages or controls, any venture, business, or enterprise engaged in the providing Investment Services with respect to any services or products of the Company which are either offered or are being developed by the Company; ormortgage, without limiting the generality of the foregoinggovernment, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture corporate or other business entitycredit products, which competes including residential whole loans, residential mortgage-based securities, asset-based securities, commercial real estate, commercial whole loans, commercial mortgage-based securities, investment grade government or corporate credit, high yield government or corporate credit or structured government or corporate credit vehicles or with respect to any services other products that compete with the Business in the United States, Asia or products of the Company which are either offered or are being developed by the CompanyEurope; provided, however, provided that Executive a Restricted Party may own, solely as an investment, not (A) own no more than one percent (1%) 3% of any class of securities of any publicly held corporation in competition with the Company whose securities are Person traded on any national securities exchange and no more than 5% of any class of securities of any Person whose securities are not traded on any national securities exchange (so long as such securities do not constitute more than 5% of the overall equity or voting power of such Person) and (B) may provide investment advice for managing the assets of itself or members of its Immediate Family; and provided further that, notwithstanding any terms to the contrary in the United States of America.
5.1.2 During the Term of this Agreement and during the Termination PeriodSection 6.08, Executive shall not, directly or indirectly, Cxxxxxxxx Xxxxx may continue to (i) own the securities of ZAIS Investments 2006, LLC that Cxxxxxxxx Xxxxx owns as of the date hereof and (ii) manage the investments of and provide other services to ZAIS Investments 2006, LLC in the ordinary course of business.
(2) solicit, hire or employ, or otherwise engage (or assist any other Person in soliciting, hiring, employing or otherwise engaging) as an employee, independent contractor or otherwise, any employee of a Company Entity who was employed or engaged by a Company Entity within one year of the Closing Date, or in any way interferes with any such Person’s contractual arrangements or relationship with any of the Company Entities;
(3) solicit or accept (or assist any other Person in soliciting) the business of, or provide (or assist any other Person (except the Company Entities) in providing) Investment Services to, any current, former or prospective Client of any of the Company Entities;
(4) otherwise induce or attempt to influence induce (or assist any employee of the Company other Person in inducing) any current, former or prospective Client to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact cease doing business with a competitor of the Company in Company's business.
5.1.3 During the Term of this AgreementEntity, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents interfere with the relationship between any current, former or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the prospective Client and a Company any rights that he may have in any such trade secret or proprietary information.Entity;
5.2 If Executive breaches(5) accept employment, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants")as an employee, the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope independent contractor or otherwise, it is at a Person other than the intention Company Entities where a current or former member of the parties hereto management team of a Company Entity is already employed or expected to be employed, as an employee, independent contractor or otherwise; or
(6) publish or communicate to any Person any remarks, comments or statements that disparage, impugn the character, honesty, integrity, reputation, morality or business acumen or abilities of any Company Entity, any management employee, Investor or Affiliates of any Company Entity or Investor, provided that the foregoing does not preclude the making of truthful statements in connection with any Litigation; or
(7) disclose, reveal, communicate, divulge or convey to any third party, any non-public, confidential or proprietary information of a Company Entity; provided that such determination not bar or in any way affect the Company's right information may be disclosed to the relief extent required under legal process or requested by a Governmental Authority or Self-Regulatory Organization; provided above in the courts of any other jurisdictions within the geographical scope of further that such Restrictive Covenants, as Restricted Party shall notify Investor and shall cooperate with Investor to breaches of limit or prevent such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenantsdisclosure.
Appears in 1 contract
Samples: Investment Agreement (Hf2 Financial Management Inc.)
Restrictive Covenants. 5.1 Executive acknowledges that (i) he has a major responsibility for the operation, administration, development and growth of the Company's Company s business, (ii) the Company s business has become international in scope, (iii) his work for the Company has brought him and will w i ll continue to bring him into close contact with confidential information of the Company and its customers, and (iiiiv) the agreements and covenants contained in this Section 5 Subsection 5.1 are essential to protect the business interest interests of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of this Agreement (the "Termination Period"), Executive shall not, directly or indirectly, compete with respect to any services or products of the Company which are either offered or are being developed by the CompanyCompany as of the date of termination; or, without limiting the generality of the foregoing, be by or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executiveExecutive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the CompanyCompany as of the date of termination; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and during the and, for one year thereafter ("Termination Period"), Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee Executive of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve one (121) month year period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's Company s business.
5.1.3 5.1. During the Term of this Agreement, the Termination Period, if applicable, Period and any time thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the confidential or proprietary affairs of the Company, includingi n c l u ding, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policiesp o licies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section breaches Subsection 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.:
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5Subsection 5.1.1, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of or proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination determination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's Company s right to of the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive acknowledges that (ia) he has a major responsibility for During the operation, administration, development and growth of the Company's business, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term term of this Agreement and for one (1) year thereafter, White agrees to keep confidential, not to use or to disclose to others, except as expressly consented to in writing by the Company, or as required by law to be disclosed, any trade secrets or confidential technology, proprietary information, customer lists, or knowledge belonging to or relating to the affairs of the Company, which term as used in this Section shall include any and all subsidiaries of the Company, or any matter or thing ascertained by White through White's association with the Company, the use or disclosure of which matter or thing might reasonably be construed to be contrary to the best interest of the Company. White further agrees that should he leave the active service of the Company, White will neither take nor retain, without prior written authorization from the Company, any papers, data, client lists, books, records, files, or other documents (or copies thereof) or other confidential information of any kind belonging to the Company pertaining to the business, sales, financial condition, products or services of the Company.
(b) While employed by the Company and for a period of twelve one (121) months following the termination of this Agreement (the "Termination Period")year thereafter, Executive White agrees that he shall not, directly or indirectly, compete for himself or for any other person, firm, corporation, partnership, association or other entity, attempt to employ or enter into any contractual arrangement with respect to any services employee or products former employee of the Company which are either offered or are being developed any of its direct or indirect subsidiaries, unless such employee or former employee has not been employed by such entity for a period in excess of six months.
(c) Except with the prior written consent of the Company; or, without limiting White will not during the generality term undertake or engage in any other employment, occupation or business enterprise other than one in which he is an inactive investor as described below (except that he may conclude obligations remaining subsequent to the sale of White Corporation). White will also not acquire, assume or participate in, directly or indirectly, any position, investment or interest adverse or antagonistic to the Company, its business or prospects, financial or otherwise, or take any action towards any of the foregoing. Further, be or becomeduring the term, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products except on behalf of the Company which are either offered or are being developed by its subsidiaries or with the Company; provided's express prior written consent, however, that Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and during the Termination Period, Executive shall White will not, directly or indirectly, (i) induce whether as an officer, director, employee, stockholder, partner, proprietor or attempt to influence associate, representative or otherwise, become or be interested in any employee other person, corporation, firm, partnership or other entity whatsoever which directly competes with the Company at that time or any of its direct or indirect subsidiaries, in any part of the Company world, in any line of business engaged in by any such entities (or in which any such entities have made plans to leave its employbe engaged in); provided however, (ii) aid or agree that anything above to aid the contrary notwithstanding, White may own, as an inactive investor, securities of any competitorcompetitor corporation, customer or supplier so long as his holdings in any one such corporation shall not in the aggregate constitute more than 1% of the voting stock of such corporation. In the event that the Company has given White its prior written approval to his serving on the Board of Directors of an entity which thereafter may reasonably be expected to compete with the Company (either because of new development at the Company or at the entity), then White shall promptly advise the Company of the possible competition. In the event he is bound by a confidential information obligation to the entity not to disclose its new development, White shall promptly resign from and discontinue all relationships with the entity. Subject to the foregoing limitation, White may serve on the Board of Directors of a golf apparel or golf retail company.
(d) For one (1) year after termination of this Agreement, White agrees that he shall not in any attempt way, directly or indirectly, solicit or sell to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, persons or (iii) induce or attempt to influence any person or business entity who was a customer or supplier entities which were customers of the Company during any portion of said period the 12 months preceding termination products which are similar to transact business with a competitor of products which the Company in Company's business.
5.1.3 During has sold at any time during the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes term of this Agreement.
5.1.4 Executive hereby (e) White agrees that all know-howhe shall not, documentseither during the term of this Agreement or thereafter, reportsdisparage or denigrate, plansor otherwise do or say anything which would tend negatively to affect, proposals, marketing and sales plans, client lists, client files and materials made by him the reputation or by the Company are the property public perception of the Company and shall not be used by him in or any way adverse to of its affiliates, directors, officers, employees, agents or fiduciaries, or the Company's interests. Executive shall not deliver, reproduce stock or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary informationproducts.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive acknowledges that (iA) he has a major responsibility for In the operation, administration, development and growth event of the Employee's termination with the Company's business, (ii) his work whether voluntarily or for the Company has brought him and cause, Employee agrees that he will continue to bring him into close contact with confidential information of the Company and its customersnot, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months four years following the termination of this Agreement (the "Termination Period"), Executive shall notsuch termination, directly enter into or indirectly, compete become associated with respect to any services or products of the Company which are either offered or are being developed by the Company; or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, engage in any capacity other business (whether as a partner, shareholder, owner, officer, director, executiveshareholder, principal, agent, creditor, trusteeemployee, consultant, co-venturer or otherwise) with ), which business is a direct or indirect competitor of the Company, or any individualcurrent or future subsidiary, corporationassociate, firm, association, partnership, affiliate or joint venture or other business entitypartner, which competes with respect to any services is a direct or products indirect competitor of the Company which are either offered Company, or are being developed by any subsidiary or Parent company.
(B) If any court shall hold that the Company; providedduration of non-competition or any other restriction contained in this paragraph is unenforceable, howeverit is our intention that same shall not thereby be terminated but shall be deemed amended to delete therefrom such provision or portion adjudicated to be invalid or unenforceable, that Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange or in the United States of Americaalternative, such judicially substituted term may be substituted therefor.
5.1.2 During (C) Employee agrees that during the Term term of this Agreement and during the Termination PeriodRestrictive Covenant, Executive shall he will not, directly or indirectly, (ia) induce contact, induce, or attempt to influence any employee customers or clients, joint venture partners, employee, consultant, associate or affiliate of the Company or its or their successors with respect to leave its employthe Company?s proposed business as described in (A) above or for any reason whatsoever, (ii) aid or agree to aid any competitor, customer or supplier of without the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs written consent of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers signed by two executive officers; (b) request or advise any customers, salesclients, profits joint venture partners, suppliers, manufacturers, employees, consultants, associates or other financial information, which is confidential to affiliates of the Company or is not generally known in its or their successors, who may contact or attempt to contact the relevant tradeEmployee to withdraw, nor shall Executive make use of any curtail, or cancel such information for his own benefit. Any technique, method, process or technology used by parties' business with the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse its successors; (c) disclose to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to persons or corporations the Company at law names or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach addresses of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 abovecustomers, Executive acknowledges and agrees that in the event of a violation clients, joint venture partners, suppliers, manufacturers, wireless services providers, employees, consultants, associates, or threatened violation of any affiliates of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled or its or their successors; or (d) induce or encourage any employee to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect terminate his relationship with the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive acknowledges that 6.1 For the purpose of assuring to the Investors the full benefit of the business and goodwill of the Group and as part of the inducement to the Investors entering into the Subscription Agreement, each of the Founders hereby undertakes to the Company and to each of the Investors that, during the Relevant Period and for such period as will expire on the later of either (i) he has a major responsibility for two years from the operation, administration, development and growth last day of the Company's businessRelevant Period in respect of a Founder, or (ii) his work for such date after the Company has brought him and will continue to bring him into close contact with confidential information Relevant Period at which the Investors hold Shares representing less than 5% of the share capital of the Company and its customers, and at the date hereof (iii) save that any reduction in Shares held by the agreements and covenants contained in this Section 5 are essential to protect Investors below the business interest aforesaid 5% threshold as a direct result of the Company Investors being required to participate in a Drag Along Sale, that is initiated by other Initial Shareholders, shall be ignored and that the Company will not enter into Investors’ shareholding shall be deemed to be 5% for the purposes of this Agreement but for clause after such agreements Drag Along Sale) (“Restriction Period”), neither it/he nor any of its/his Associates will, whether directly or indirectly and covenants. Accordinglyeither alone or in conjunction with, the Executive covenants or on behalf of, any other person, firm or company and agrees whether as followsprincipal, shareholder, director, employee, agent, consultant, partner or otherwise:
5.1.1 Except as otherwise provided for 6.1.1 be concerned with, engaged or interested in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of this Agreement (the "Termination Period"), Executive shall notany business in any manner, directly or indirectly, compete which is in direct competition with respect the business carried on by any Group Company in Hong Kong or in the PRC or anywhere in the world (“Territory”) at any time during the Restriction Period;
6.1.2 canvass, solicit or approach or cause to be canvassed, solicited or approached, any person in any manner in the Territory for orders or accept, receive or process any orders from any person who is or has been during the Restriction Period a customer or client of any Group Company where the orders relate to goods and/or services which are competitive with or products of the type supplied by any Group Company which are either offered at any time during the Relevant Period or are being developed the Restriction Period; or
6.1.3 solicit or entice away, or endeavour to solicit or entice away, any employee or officer of any Group Company.
6.2 For the purpose of assuring to the Initial Shareholders the full benefit of the business and goodwill of the Group and as part of the inducement to the Initial Shareholders investing in the Group, each of Xx. Xxxx and Xx. Xxxx hereby undertakes and warrants (as the case may be) to the Company and each of the Initial Shareholders that:
6.2.1 the current scope of business of Beijing Ninetowns Yadi Wall Paper Co., Ltd. is not, and will not be expanded into any business that would be, in direct competition with the business carried on by the Company; orGroup (from time to time);
6.2.2 the current scope of business of Beijing Ninetowns Import & Export e-Commerce Software Co., without limiting the generality of the foregoingLtd. is not, and will not be or become, or agree to be or become, interested in or associated withexpanded into any business that would be, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) direct competition with any individual, corporation, firm, association, partnership, joint venture or other the business entity, which competes with respect to any services or products of the Company which are either offered or are being developed carried on by the Company; providedGroup (from time to time);
6.2.3 the current scope of business of Beijing Xinchengtong Digital Technology Co., howeverLtd. is not, and will not be expanded into any business that Executive may ownwould be, solely as an investment, not more than one percent in direct competition with the business carried on by the Group (1%) from time to time);
6.2.4 in the event that the Group wishes to expand into a new line of any class of securities of any publicly held corporation business from the date hereof that would being it in competition with the Company whose securities are traded business carried on any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and during the Termination Period, Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenantsentities referred to in clauses 6.2.1 to 6.2.3, procure that such entity(ies) will all such necessary acts and execute all documents to remove itself or themselves from being in direct competition with the Group.
5.2.2 Notwithstanding 6.3 Each undertaking in clauses 6.1 and 6.2 shall be treated as independent of the provisions of subsection 5.2.1 aboveother undertakings so that, Executive acknowledges and agrees that in the event of a violation or threatened violation of if any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, them is held to be invalid or unenforceableunenforceable for any reason, the same remaining undertakings shall be valid to the extent that they are not affected.
6.4 Each Founder hereby expressly acknowledges and declares that it/he has duly considered the undertakings set out in clauses 6.1 and 6.2, so far as they apply to them, and considers that they are reasonable in the circumstances, and warrants and undertakes to each of the Investors that it/he shall not affect challenge or query the remainder validity and enforceability of these undertakings.
6.5 Each of the covenant undertakings set out in clauses 6.1 and 6.2 is for the benefit of each Investor or covenantsInitial Shareholder separately, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if and any of the Restrictive CovenantsInvestors or Initial Shareholders may enforce such undertakings independently regardless of whether the other Shareholders are or intend to enforce such undertakings or have given or intend to give any waiver in relation thereof.
6.6 For the purposes of this clause 6, “Relevant Period” means, in relation to Jitter Bug, the period during which it has any direct or indirect interest (legal or beneficial) in the issued share capital of any part thereof, is held to be unenforceable because of the duration of such provision or the area covered therebyGroup Companies, and in relation to Xx. Xxxx and Xx. Xxxx, the parties hereto agree that period during which he/she is a shareholder, Director, employee and/or has any direct or indirect interest (legal or beneficial) in the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts issued share capital of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenantsGroup Companies.
Appears in 1 contract
Samples: Shareholders’ Agreement (Ninetowns Internet Technology Group Co LTD)
Restrictive Covenants. 5.1 Executive acknowledges that (i) he has a major responsibility for the operation, administration, development and growth Effective as of the Company's business, date hereof:
(iia) his work for the Company has brought him and will continue to bring him into close contact with confidential information In consideration of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest of the Company and that the Company will not enter entering into this Agreement but for such agreements and covenants. Accordinglywith Xxxxxx, the Executive covenants and Xxxxxx hereby agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of this Agreement (the "Termination Period"), Executive that he shall not, directly or indirectly, compete with respect without the Company’s prior written consent:
(i) disclose or use Confidential Information pertaining to any services or products the business of the Company which are either offered or are being developed any of its subsidiaries, except (A) when required to perform his duties to the Company or one of its subsidiaries, (B) as required by the Company; orapplicable law, without limiting the generality regulation or government action or (C) in order to enforce Xxxxxx’x rights under this Agreement or any of the foregoingother agreements referenced herein;
(ii) during the Non-Competition Period, be for his own behalf or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholderowner, ownerdirector, officer, directorstockholder, executivemember, principalemployee, agent, creditor, trustee, consultant, co-venturer or otherwiseindependent contractor of any Person, engage in a Competitive Business.
(iii) with at any individualtime from January 1, corporation2018 to December 31, firm2020, association, partnership, joint venture directly or other indirectly (A) solicit Customers or business entity, which competes with respect to any services or products partners of the Company which are either offered or are being developed by any of its Subsidiaries to terminate their relationship with the CompanyCompany or any of its Subsidiaries or otherwise solicit such Customers or business partners to engage in a Competitive Business; or (B) solicit, offer employment to, hire, direct any other Person to hire or suggest to any other Person that such Person hire (as an employee, consultant or independent contractor) any Person who is, or has been at any time during the twelve (12) months immediately prior to such solicitation, offer or hiring, an employee of the Company or any of its Subsidiaries; provided, however, that Executive such restriction shall not apply to any Person who was no longer employed by the Company as of December 31, 2017, or who is involuntarily terminated from the Company at any time, and provided further that as to any Person who voluntarily resigned from the Company, Xxxxxx may seek the Company’s consent to solicit, offer employment to or hire such Person and the Company shall not unreasonably withhold, condition or delay its consent;
(iv) during the Non-Competition Period, acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, or trustee.
(b) Notwithstanding anything to the contrary in the foregoing, for the purposes of this Section 5, Xxxxxx may, directly or indirectly own, solely as an investment, securities of any Person engaged in a Competitive Business that is publicly traded on a national stock exchange if Xxxxxx (i) is not a controlling person of, or a member of a group which controls, such Person, (ii) does not, directly or indirectly, own 1% or more than one percent (1%) of any class of securities of such Person and (iii) does not serve as a director of, or have any publicly held corporation rights to designate or nominate any director for such Person or any of its Affiliates.
(c) Notwithstanding anything to the contrary in competition with the foregoing, Xxxxxx shall not be deemed to violate this Section 5 solely by virtue of Xxxxxx’x direct or indirect ownership of the outstanding securities of any Sterling Affiliate (or of any Person through a Sterling Affiliate), provided, however, that Xxxxxx’x direct or indirect ownership of such Sterling Affiliate does not exceed 5% of the outstanding securities of such Sterling Affiliate and that, during the Non-Competition Period, Xxxxxx shall:
(i) refrain from any activity that is intended to create, acquire, maintain or otherwise operate a Competitive Business through such Sterling Affiliate, or that would reasonably be expected to result in a misappropriation of a Business Opportunity (as hereinafter defined) of the Company whose securities are traded on any national securities exchange in the United States of America.or its Subsidiaries;
5.1.2 During the Term of this Agreement and during the Termination Period, Executive shall (ii) not, directly or indirectly, (i) induce participate in, or attempt to influence influence, the management, direction or policies of (other than through the exercise of any employee of the Company to leave its employ, (iivoting rights held by Xxxxxx in connection with such securities) aid or agree to aid any competitor, customer or supplier of the Company such Sterling Affiliate that is engaged in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or a Competitive Business; and
(iii) induce or attempt to influence any person or business entity who was only while Xxxxxx is a customer or supplier member of the Company during Board, (A) no later than thirty (30) days following Xxxxxx’x acquisition of a direct or indirect ownership interest in any portion Competitive Business and/or Xxxxxx’x receipt of said period information that any Sterling Affiliate in which he has an ownership interest (or Person in which Xxxxxx has an ownership interest through a Sterling Affiliate) not previously a Competitive Business has become or is reasonably likely to transact business with become a competitor Competitive Business, Xxxxxx shall provide written notice to the Board of such development; and (B) on a quarterly basis, Xxxxxx shall provide a report to the Board setting forth, in reasonable detail, a general description of the Company business activities and plans of such Competitive Business, and any other material information relating to the scope of Xxxxxx’x activities with respect thereto; provided, however, that no disclosure requirement in Company's businessthis paragraph shall require Xxxxxx to breach any fiduciary duties and/or duties of confidentiality that may be owed to such Sterling Affiliate or Competitive Business.
5.1.3 During the Term (d) For purposes of this Agreement, the Termination Period, if applicable, and thereafter, Executive “Business Opportunity” shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers mean one or customers, sales, profits more transactions or other financial information, which is confidential corporate opportunities available to the Company or is not generally known in the relevant trade, nor shall Executive make use any of any such information for its Subsidiaries that Xxxxxx learns about as a direct result of his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of service to the Company and shall not be used by him in any way adverse its Subsidiaries. Notwithstanding anything to the Company's interests. Executive shall contrary in this Agreement, (x) the Board, by majority vote of those directors not deliver, reproduce or in any way allow such documents or things to be delivered or used designated by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive CovenantsSterling Affiliate, or any part thereofduly designated committee of the Board, is held to be invalid may waive (in writing or unenforceable, by resolution) any noncompetition provisions described in this Section 6 in its discretion; and (y) Xxxxxx’x membership on the same board of managers (or similar body) of any Sterling Affiliate shall not affect in and of itself constitute a breach hereof.
(e) If at any time a court holds that the remainder of the covenant restrictions stated in Section 5(a) are unreasonable or covenants, which shall be given full effect, without regard to the invalid or otherwise unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered therebyunder circumstances then existing, the parties hereto agree that the maximum period, scope or geographic area determined to be reasonable under such circumstances by such court making such termination shall have will be substituted for the power stated period, scope or area. Because Xxxxxx’x services are unique and because Xxxxxx has had access to reduce Confidential Information, the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce agree that while the Restrictive Covenants upon the courts Company may ask for monetary damage for a breach by Xxxxxx of this Agreement, monetary damages shall be an inadequate remedy for any jurisdiction within the geographical scope such breach of such Restrictive Covenantsthis Agreement. In the event that of a breach or threatened breach of this Agreement, the courts Company or its subsidiaries or their respective successors or assigns shall, in addition to other rights and remedies existing in their favor, shall be entitled to an injunction, restraining order or other equitable relief (in each case, without the posting of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason a bond) to prevent breaches of the breadth provisions of such scope or otherwise, it is this Agreement and to specifically enforce the intention of the parties hereto that such determination not bar or terms and provisions hereof in any way affect the Company's right to the relief provided above court of competent jurisdiction in the courts of United States or any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenantsstate thereof.
Appears in 1 contract
Samples: Chairman Compensation Agreement (Laureate Education, Inc.)
Restrictive Covenants. 5.1 Executive acknowledges The Company and the Members each agree that (i) he has a major responsibility for after the operation, administration, development Closing Relationserve shall be entitled to the goodwill and growth going concern value of the Company's businessBusiness and to protect and preserve the same to the maximum extent permitted by law. The Company and the Members each also acknowledge that its management contributions to the Business have been uniquely valuable and involve proprietary information that would be competitively unfair to use or to make available to any competitor of the Business. For these and other reasons and, (ii) his work for as an inducement to Relationserve to enter into this Agreement, and in order to assure that Relationserve will realize the Company has brought him and will continue to bring him into close contact with confidential information benefits of the transactions contemplated hereby, the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest each of the Company and Members agree that the Company they will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as followsnot:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and (a) for a period of twelve five (125) months years following the termination of this Agreement Closing Date (the "Termination Noncompete Period"), Executive shall not, directly or indirectly, compete with respect to any services alone or products of the Company which are either offered or are being developed by the Company; or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, ownerjoint venturer, officer, director, executivemember, principalmanager, employee, consultant, agent, creditorindependent contractor, trusteelender or security holder, consultantof any company or business, co-venturer through an Affiliate, for its own benefit or otherwise) with as an agent for another, engage in any individualactivities, corporationcarry on or participate in the ownership, firmmanagement or control of, associationor allow its name or reputation to be used in or by, partnership, joint venture any other present or other future business entity, which enterprise that competes with respect Relationserve in the activities of or is substantially similar to any services or products of the Company which are either offered or are being developed by the CompanyBusiness; provided, however, that Executive may own, solely as an investment, not more the beneficial ownership of less than one percent (1%) of any class of securities outstanding shares or interests of any publicly held corporation in competition with the Company whose securities are entity actively traded on any a national securities exchange or recognized over-the-counter market shall not be deemed, in and of itself, to violate the United States of America.
5.1.2 During the Term prohibitions of this Agreement and Section 7.6;
(b) during the Termination Noncompete Period, Executive shall not, directly or indirectly, either for itself or any other Person, (i) induce or attempt to influence induce any employee of Relationserve or any of its Affiliates (collectively, the "Relationserve Companies") to leave the employ of the Relationserve Companies, (ii) in any way interfere with the relationship between the Relationserve Companies and any employee of the Company to leave its employRelationserve Companies, (iiiii) aid employ or agree otherwise engage, or offer to aid employ or otherwise engage, any competitorPerson who is then (or was at any time within six months before the time of such employment, customer engagement or supplier offer thereof) an employee, sales representative or agent of the Company in any attempt (or of the Relationserve Companies as successor to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aidBusiness), or (iiiiv) induce or attempt to influence induce any customer, supplier, licensee, or business relation of the Relationserve Companies to cease its relationship with the Relationserve Companies;
(c) during the Noncompete Period, directly or indirectly, employ or enter into any arrangement to pay salary, bonus or other compensation to any person or business entity who was a customer employed by the Relationserve Companies during the previous six (6) months, or supplier in any manner seek to induce any employee of the Company during Relationserve Companies to leave his or her employment; and
(d) at any portion of said period to transact business with a competitor time following the Closing Date, directly or indirectly, in any way utilize, disclose, copy, reproduce or retain in their possession any of the Relationserve Companies' proprietary or confidential rights, records or information acquired hereunder, including, but not limited to, any customer lists. The Company and the Members agree and acknowledge that the restrictions contained in Company's business.
5.1.3 During this Section 7.6 are reasonable in scope and duration, and are necessary to protect the Term Relationserve Companies. The Company and the Members agree and acknowledge that any breach of this AgreementSection 7.6 will cause irreparable injury to the Relationserve Companies and upon any breach or threatened breach of any provision of this Section 7.6, the Termination PeriodRelationserve Companies shall be entitled to injunctive relief, if applicablespecific performance or other equitable relief, and thereafterwithout the necessity of posting bond; provided, Executive however, that this shall not in no way limit any other than in remedies which the performance Relationserve Companies may have as a result of his duties disclose such breach, including the right to anyone any information about the affairs of the Company, includingseek monetary damages. The parties hereto agree that Relationserve may assign, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential the foregoing restrictive covenants to any successor to the Company or is not generally known in the relevant trade, nor shall Executive make use Business. The provisions of any such information for his own benefit. Any technique, method, process or technology used by the Company this Section 7.6 shall be considered a "trade secret" for construed as an agreement on the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property part of the Company and shall not be used by him in the Members independent of any way adverse to other part of this Agreement or any other agreement, and the Company's interests. Executive shall not deliver, reproduce existence of any claim or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent cause of action of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding Members against Relationserve or the provisions of subsection 5.2.1 aboveRelationserve Companies, Executive acknowledges and agrees that in whether predicated on this Agreement or otherwise, shall not constitute a defense to the event of a violation or threatened violation of any enforcement by Relationserve of the provisions of this Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants7.6. In addition, all Persons with an interest in a Member and those Persons listed on Schedule 7.6 shall execute a non-compete agreement containing the event that provisions of this Section 7.6 (the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants."Noncompete Agreements")
Appears in 1 contract
Samples: Asset Purchase Agreement (Chubasco Resources Corp.)
Restrictive Covenants. 5.1 Executive Employee acknowledges and agrees that (i) he has a major responsibility for the operation, administration, development and growth --------------------- through his position as an employee of the Company's business, he will learn valuable trade secrets and other proprietary information relating to the Business, (ii) his work for Employee's services to the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customersare unique in nature, and (iii) the agreements and covenants Company would be irreparably damaged if Employee were to provide services to any person or entity in violation of the restrictions contained in this Section 5 are essential Agreement. Accordingly, as an inducement to protect the business interest of the Company and that the Company will not to enter into this Agreement but for such agreements and covenants. Accordinglyin consideration of his employment hereunder, the Executive covenants and Employee agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, that during the Employment Term of this Agreement and for a an one year thereafter (such period of twelve (12) months following the termination of this Agreement (being referred to herein as the "Termination Restricted Period"), Executive shall notneither Employee nor any Affiliate of Employee (as defined below) shall, directly or indirectly, compete with respect to either for himself or for any services other person or products of the Company which are either offered entity:
(a) engage or are being developed by the Company; or, without limiting the generality of the foregoing, be or becomeparticipate in, or agree to assist, advise or be or becomeconnected with (including as an employee, interested in or associated withowner, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trusteeadvisor, consultant, co-venturer agent or otherwise) with ), or permit his name to be used by or render services for, any individual, corporation, firm, association, partnership, joint venture person or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Companyentity engaged in a Competing Business (as hereinafter defined); provided, however, that Executive may ownnothing in this Agreement shall prevent Employee from acquiring or owning, solely as an a passive investment, not more than up to one percent (1%) of any class of the outstanding voting securities of any an entity engaged in a Competing Business which is publicly held corporation in competition with the Company whose securities are traded on any recognized national securities exchange in market;
(b) take any action which might divert from the United States Company or an Affiliate of America.the Company any business which is within the scope of the Company's or such Affiliate's then business, including but not limited to the pay or subscription television business;
5.1.2 During the Term of this Agreement and during the Termination Period, Executive shall not, directly (c) solicit or indirectly, attempt to solicit (i) induce any then subscriber or attempt other customer of the Company with whom the Employee had contact and/or knowledge during the Employment Term to influence purchase Competing Products or Services (as herein defined) from any person or entity (other than the Company) or (ii) any then subscriber, customer, supplier, licensor, licensee or other business relation of the Company with whom the Employee had contact and/or knowledge during the Employment Term to cease doing business with the Company; or
(d) solicit or hire any director, officer, employee or agent of the Company or any Affiliate of the Company to leave its employ, (ii) aid or agree to aid perform services for any competitor, customer or supplier of entity other than the Company and its Affiliates. As used herein, a "Competing Business" shall mean any company or person engaged in, or planning to engage in, the business of providing pay or subscription television services (whether through hard-wire, wireless or other transmissions) to any customer in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company market in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or any Affiliate thereof is not generally known in or is planning during the relevant trade, nor Employment Term or on the termination thereof to provide pay or subscription television services. Such markets shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall include but not be used by him in any way adverse limited to the Company's interestsAlbuquerque, Chicago, Detroit, Houston, Indianapolis, Kansas City, Milwaukee, Phoenix, St. Louis and Tucson. Executive shall not deliver, reproduce or in any way allow such documents or things The products and services subject to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns these restrictive covenants are herein referred to the Company any rights that he may have in any such trade secret or proprietary informationas "Competing Products and Services".
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive acknowledges The Seller acknowledge that (i) he has a major the business activities of the Company will include acquisitions and /or the organic development of the Security, Network, Software and Communication business; (ii) they will have the exclusive responsibility for the operation, administration, development operation and growth of the Company's business, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, ; and (iii) the agreements and covenants contained in this Section 5 (6.4) are essential to protect the business interest of the Company Purchaser and that the Company will not enter into this Agreement but Company. Throughout the Employment Period, as defined in the Employment Agreements attached hereto, for such agreements and covenants. AccordinglySeller, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of this Agreement (the "Termination Period"), Executive Seller shall not, directly or indirectly, compete with respect to any services or products of the Company which are either offered or are being developed by the Company; or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Company; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and during the Termination Period, Executive shall not, directly or indirectly, indirectly (i) induce or attempt to influence any employee or customer of the Company to leave its employemployment or terminate its services with the Company, (ii) aid aid, agree or agree work as am employee or subcontractor to aid any competitor, customer or supplier of the Company Company, or its affiliates or in any attempt to hire any person who shall have been employed engaged by the Company Company, within the twelve one (121) month period preceding year period. Preceding such requested aid, or (iii) induce or attempt to influence any person or person, business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process a client or technology used by the Company shall be considered is a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors supplier of the Company. Executive hereby assigns to the Company any rights that The Restrictive Covenant will terminate if he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of Purchaser breaches any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions following acts; (i) Breaches any covenants in Seller Employment Agreements; and (ii) Change of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any “Control of the provisions of Section 5, the Company Company” shall have no adequate remedy deemed to occur if individuals who at law and shall therefore be entitled the beginning of such period constitute the Board cease for any reason to enforce constitute a least a majority thereof, unless the election of each director who was not a director at the beginning of such provision period has been approved by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available directors representing at law or in equity.
5.3 If any least two thirds of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, directors then in office who were directors at the same shall not affect the remainder beginning of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality period; and (iii) involuntary termination of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceableSeller Employment.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Samples: Definitive Acquisition and Stock Exchange Agreement (Success Holding Group International, Inc.)
Restrictive Covenants. 5.1 To reduce the cost to the Company of monitoring and enforcing the compliance of Executive acknowledges with the confidentiality obligations contained in Section 3.1 of this Agreement, Executive agrees that he will not, so long as he is employed by the Company and, in the case of 3.3(b), (c) and (d), for the longer of (i) he has a major responsibility for period of one (1) year from and after the operationdate of termination of his employment, administrationor (ii) the period during which Executive receives any compensation from the Company under the terms of Section 4.4(b) (the “Restricted Period”):
(a) directly or indirectly own an interest in, development manage, operate, join, control, lend money or render financial assistance to, as an officer, employee, partner, stockholder, consultant or otherwise, any individual, partnership, firm, corporation or other business organization or entity that, at such time directly competes with, or intends to compete with, the Company or any of its subsidiaries or affiliates in the business of motor repair, magnet manufacture and growth repair, preventive maintenance and electrical contracting, or any other principal line of business engaged in by the Company or any of its subsidiaries or affiliates at the time of such termination (a “Competing Company”); Nothwithstanding the foregoing, Executive shall be entitled to own securities of any entity if such securities are registered under Section 12(b) or (g) of the Securities Exchange Act of 1934, as amended, and, upon approval of the Company's business, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information ’s Board of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following the termination of this Agreement (the "Termination Period")Directors, Executive shall not, be entitled to purchase securities of a Competing Company entity if such securities are offered to investors irrespective of any employment or other participation in the entity by the investor;
(b) directly or indirectly, compete either for Executive or for any other person or entity, solicit any person or entity to terminate such person’s or entity’s contractual and/or business relationship with respect to any services or products of the Company or any of its subsidiaries or affiliates, nor shall Executive interfere with or disrupt or attempt to interfere with or disrupt any such relationship;
(c) engage for the benefit of himself or any other person or entity, in any activity of employment in the performance of which are either offered it could be reasonably anticipated that he would be required or are being developed by expected to use or disclose Confidential Information obtained while an employee of the Company; or, without limiting the generality
(d) directly or indirectly solicit any of the foregoingCompany’s employees, be or becomeagents, or agree independent contractors to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products leave the employ of the Company which are either offered for a Competing Company. In the event of a violation by Executive of the provisions of Section 3.3(b), (c) or are being developed by the Company; provided, however, that Executive may own, solely as an investment, not more than one percent (1%) d)following termination of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and during the Termination Periodemployment, Executive shall not, directly or indirectly, (i) induce or attempt to influence hereby forfeits any employee amount due and owing Executive under terms of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination PeriodSection 4.4(b), if applicableany, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company forfeiture shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any to all other rights and remedies available to that the Company may have under this Agreement, at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting as a breach result of any of the Restrictive Covenantssuch violation.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive acknowledges that (i) he has a major responsibility for the operation, administrationadministration development, development and growth of the Company's business, ; (ii) the Company's business is or may become national or international in scope; (iii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, clients; (iv) the Company has compensated Executive in the past and has agreed to the additional compensation provided for Executive in this Agreement in part because of the covenants contained in this Section 10; and (iiiv) the agreements and covenants contained in this Section 5 10 are essential to protect the business interest interests of the Company and that the Company will would not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 10.4.1 Except as otherwise provided for in this Agreement, during the Term term of this Agreement and the Consulting Period and, if this Agreement is terminated for a period of twelve (12) months any reason other than pursuant to Section 4.7 hereof, for two years following the date of termination of this Agreement (the "Termination Period"), Executive shall not, directly or indirectly, within any county in any state, province, or other political subdivision of the United States, Mexico or any other country in which the Company is conducting business as of the effective date hereof, or as of the date of termination, compete with respect to any services or products of the Company which are either offered or are being developed by the Company as of either such date (the "Company's Business"); or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executiveemployee, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with ), any individual, individual corporation, firmCompany, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Company; 's Business, provided, however, that Executive may own, solely as an investment, not more than one percent (1%) % of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of AmericaStates.
5.1.2 10.4.2 During the Term term of this Agreement and and, if applicable, during the Termination Period, Executive shall not, directly or indirectly, (i) induce solicit for employment or attempt to influence provide services, or employ or engage the services of, any employee of the Company to leave its employ, who was employed by the Company at the time of termination or any neutrals associated with the Company as of such time; (ii) aid or agree to aid any competitor, customer client, or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within with the twelve (12) month period preceding such requested aid, ; or (iii) induce or attempt to influence any person or business entity who was a customer client or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive acknowledges that (iA) he has a major responsibility for In the operation, administration, development and growth event of the Employee's termination with the Company's business, (ii) his work whether voluntarily or for the Company has brought him and cause, Employee agrees that he will continue to bring him into close contact with confidential information of the Company and its customersnot, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months four years following the termination of this Agreement (the "Termination Period"), Executive shall notsuch termination, directly enter into or indirectly, compete become associated with respect to any services or products of the Company which are either offered or are being developed by the Company; or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, engage in any capacity other business (whether as a partner, shareholder, owner, officer, director, executiveshareholder, principal, agent, creditor, trusteeemployee, consultant, co-venturer or otherwise) with ), which business is a direct or indirect competitor of the Company, or any individualcurrent or future subsidiary, corporationassociate, firm, association, partnership, affiliate or joint venture or other business entitypartner, which competes with respect to any services is a direct or products indirect competitor of the Company which are either offered Company, or are being developed by any subsidiary or Parent company.
(B) If any court shall hold that the Company; providedduration of non-competition or any other restriction contained in this paragraph is unenforceable, howeverit is our intention that same shall not thereby be terminated but shall be deemed amended to delete therefrom such provision or portion adjudicated to be invalid or unenforceable, that Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange or in the United States of Americaalternative, such judicially substituted term may be substituted therefor.
5.1.2 During (C) Employee agrees that during the Term term of this Agreement and during the Termination PeriodRestrictive Covenant, Executive shall he will not, directly or indirectly, (ia) induce contact, induce, or attempt to influence any employee customers or clients, joint venture partners, employee, consultant, associate or affiliate of the Company or its or their successors with respect to leave its employthe Company=s proposed business as described in (A) above or for any reason whatsoever, (ii) aid or agree to aid any competitor, customer or supplier of without the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs written consent of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers signed by two executive officers; (b) request or advise any customers, salesclients, profits joint venture partners, suppliers, manufacturers, employees, consultants, associates or other financial information, which is confidential to affiliates of the Company or is not generally known in its or their successors, who may contact or attempt to contact the relevant tradeEmployee to withdraw, nor shall Executive make use of any curtail, or cancel such information for his own benefit. Any technique, method, process or technology used by parties' business with the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse its successors; (c) disclose to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to persons or corporations the Company at law names or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach addresses of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 abovecustomers, Executive acknowledges and agrees that in the event of a violation clients, joint venture partners, suppliers, manufacturers, wireless services providers, employees, consultants, associates, or threatened violation of any affiliates of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled or its or their successors; or (d) induce or encourage any employee to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect terminate his relationship with the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive Employee acknowledges that (i) and agrees that, because of his employment he has a major responsibility for the operationaccess to confidential or proprietary information concerning vendors, administration, development suppliers and growth customers of the Company's businessSubsidiary and has established relationships with such vendors, (ii) his work suppliers and customers. In exchange for valuable consideration to be given by the Company has brought him and will continue Subsidiary to bring him into close contact with confidential information of Employee, as provided herein, Employee agrees to the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as followsfollowing provisions:
5.1.1 Except as otherwise provided for in this Agreement, (a) Employee agrees that during the Term term of this Agreement his employment and for a period of twelve one (121) months following the termination of this Agreement (the "Termination Period")year thereafter, Executive Employee shall not, directly or indirectly, compete with respect to any services or products of the Company which are either offered or are being developed by the Company; orindividually, without limiting the generality of the foregoingin partnership, be or becomejointly, or agree to be or become, interested in or associated conjunction with, in or on behalf of, any capacity (whether as a partnerperson, shareholderfirm, owner, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individualpartnership, corporation, firmor unincorporated association or entity of any kind, association(i) provide domestic or international sales, partnershippurchasing, joint venture human resources, distribution operations, marketing services as an officer or other business entitymanagement level employee to any competitor of the Subsidiary listed on Exhibit A attached hereto, which competes with respect to purchase, market and sell computer and related products and/or cellular telephones and related products (collectively, the "Business"); or (ii) otherwise obtain any services or products of the Company which are either offered or are being developed by the Company; provided, however, that Executive may own, solely interest in (except as an investment, not more a stockholder holding less than one two percent (12%) of any class of securities of any publicly held interest in a corporation in competition with the Company whose securities are which is traded on any a national securities exchange or in an automated quotations system), or perform consulting services for, or otherwise participate in the United States of America.ownership, management, or control of, the companies listed on Exhibit A attached hereto;
5.1.2 During the Term of this Agreement and (b) Employee agrees that during the Termination Periodterm of his employment and for a period of one (1) year thereafter, Executive Employee shall not, directly or indirectly, (i) induce either individually, in partnership, jointly, or attempt in conjunction with, or on behalf of, any person, firm, partnership, corporation, unincorporated association or other entity of any kind, solicit or contact, for the purpose of providing products or services the same as or substantially similar to influence those provided by the Subsidiary in connection with the Business, any employee person or entity that, during the term of Employee's employment with the Subsidiary, was a vendor, supplier or customer of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of Subsidiary with whom Employee had contact during the Company in any attempt to hire any person who shall have been employed by the Company within the last twelve (12) month period preceding such requested aidmonths of his employment, or was a prospective vendor, supplier or customer of the Subsidiary with whom Employee had contact during the last twelve (iii12) induce months of his employment; and
(c) Employee agrees that during the term of his employment and for a period of one (1) year thereafter, Employee shall not, directly or indirectly, either individually, in partnership, jointly, or in conjunction with, or on behalf of, any person, firm, partnership, corporation, unincorporated association or other entity of any kind, hire or solicit, or attempt to influence hire or solicit, for employment any person or business entity who was a customer or supplier employed by the Subsidiary up to 90 days prior to the date of termination of the Company during Employee's employment or persuade or attempt to persuade any portion of said period such person to transact terminate or modify his or her employment relationship, whether or not pursuant to a written agreement, with the Subsidiary. Employee acknowledges that the time restrictions and scope included in this Section 9 are as narrow as possible and cannot be reduced and still adequately protect the Subsidiary's business with a competitor of interests. Employee acknowledges that the Company in Company's business.
5.1.3 During the Term scope of this Agreement, Section 9 is reasonable and necessary to protect the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, Subsidiary's legitimate business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreementinterests.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Samples: Employment Agreement (Sed International Holdings Inc)
Restrictive Covenants. 5.1 Executive 2.1 The Individual acknowledges that that: (i) he or she has a major responsibility for had, and will continue to have during the operationterm of the Ongoing Agreement, significant involvement in the administration, development and growth of the CompanyDivision's business, ; (ii) his or her work for the Company Division has brought him or her, and will continue to bring him or her during the term of the Ongoing Agreement, into close contact with confidential information of the Division and its customers and employees and/or the Company and its customers, customers and employees; and (iii) the agreements and covenants contained in this Section 5 2 are essential to protect the business interest interests of the Company Division and that the Company will not enter into this Agreement but for such agreements and covenantsCompany. Accordingly, the Executive Individual covenants and agrees as follows:
5.1.1 2.1.a Except as otherwise provided for in this Agreement, during the Term of this Agreement and for a period of twelve (12) months following Term, the termination of this Agreement (the "Termination Period"), Executive Individual shall not, directly or indirectly, within any state, province or other political subdivision of the United States or any other country in which the Division is conducting business, compete with respect to any services or products of the Company Division which are either offered or are being developed by the Company; Division or the Company (the "Division's Business"), or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executiveemployee, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with ), any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the CompanyDivision's Business; provided, however, that Executive Individual may own, solely as an investment, not more than one percent (1%) percent of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of Americaowned corporation.
5.1.2 2.1.b During the Term of this Agreement and during Term, the Termination Period, Executive Individual shall not, directly or indirectly, : (i) induce or attempt to influence any employee of the Company who shall have been employed in connection with the Division during the Term to leave its employ, ; (ii) aid or agree to aid any competitor, customer or supplier suppliers of the Company Division in any attempt to hire any person who shall 108 have been employed by the Company within in connection with the twelve (12) month period preceding such requested aid, Division during the Term; or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company Division during any portion of said period to transact business with a competitor of the Company in Company's businessDivision.
5.1.3 2.1.c During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive Individual shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Division or the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Division or the Company or is not generally known in the relevant trade, nor shall Executive Individual make use of any such information for his or her own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive 2.2 Individual acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 52.1 (the "Restrictive Covenants"), the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, damages or posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 2.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination determination shall have the power to reduce the duration and/or scope and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 2.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants provisions of this Agreement upon the state and federal courts of any jurisdiction within the geographical scope State of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenantsCalifornia.
Appears in 1 contract
Samples: Asset Purchase Agreement (Wilshire Technologies Inc)
Restrictive Covenants. 5.1 Executive acknowledges that (ia) he has a major responsibility for During the operation, administration, development and growth of the Company's business, (ii) his work for the Company has brought him and will continue to bring him into close contact with confidential information of the Company and its customers, and (iii) the agreements and covenants contained in this Section 5 are essential to protect the business interest of the Company and that the Company will not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term term of this Agreement and for one (1) year thereafter, Tunney agrees to keep confidential, not to use or to disclose to othexx, xxcept as expressly consented to in writing by the Company, or as required by law to be disclosed, any trade secrets or confidential technology, proprietary information, customer lists, or knowledge belonging to or relating to the affairs of the Company, or any matter or thing ascertained by Tunney through Tunney's association with the Company, the use or discxxxxxx of which xxxxxx or thing might reasonably be construed to be contrary to the best interest of the Company. Tunney further agrees that should he leave the active service of the Xxxxxxy, Tunney will neither take nor retain, without prior written authorizatxxx xxom the Company, any papers, data, client lists, books, records, files, or other documents (or copies thereof) or other confidential information of any kind belonging to the Company pertaining to the business, sales, financial condition, products or services of the Company.
(b) While employed by the Company and for a period of twelve one (121) months following the termination of this Agreement (the "Termination Period")year thereafter, Executive Tunney agrees that he shall not, directly or indirectly, compete for himself xx xxx any other person, firm, corporation, partnership, association or other entity, attempt to employ or enter into any contractual arrangement with respect to any services employee or products former employee of the Company which are either offered or are being developed any of its direct or indirect subsidiaries, unless such employee or former employee has not been employed by such entity for a period in excess of six months.
(c) Except with the prior written consent of the Company; or, without limiting Tunney will not during the generality term undertake or engage in any other emplxxxxxx, occupation or business enterprise other than one in which he is an inactive investor as described below. Tunney will also not acquire, assume or participate in, directly or ixxxxxxtly, any position, investment or interest adverse or antagonistic to the Company, its business or prospects, financial or otherwise, or take any action towards any of the foregoing. Further, be or becomeduring the term, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executive, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with any individual, corporation, firm, association, partnership, joint venture or other business entity, which competes with respect to any services or products except on behalf of the Company which are either offered or are being developed by the Company; providedits subsidiaries, however, that Executive may own, solely as an investment, not more than one percent (1%) of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and during the Termination Period, Executive shall Tunney will not, directly or indirectly, (i) induce whether as an officer, direcxxx, xmployee, stockholder, partner, proprietor or attempt to influence associate, representative or otherwise, become or be interested in any employee other person, corporation, firm, partnership or other entity whatsoever which directly competes with the Company or any of its direct or indirect subsidiaries, in any part of the Company world, in any line of business engaged in by any such entities (or in which any such entities have made plans to leave its employbe engaged in); provided however, (ii) aid or agree that anything above to aid the contrary notwithstanding, Tunney may own, as an inactive investor, securities of any competitorcompetitor xxxxxration, customer or supplier so long as his holdings in any one such corporation shall not in the aggregate constitute more than 1% of the Company voting stock of such corporation.
(d) For one (1) year after termination of this Agreement, Tunney agrees that he shall not in any attempt way, directly or indirectly, sxxxxxx or sell to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, persons or (iii) induce or attempt to influence any person or business entity who was a customer or supplier entities which were customers of the Company during any portion of said period the 12 months preceding termination shoes which are similar in style to transact business with a competitor of shoes which the Company in Company's business.
5.1.3 During has sold at any time during the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used by the Company shall be considered a "trade secret" for the purposes term of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive Employee acknowledges and agrees that (ia) through his continuing services to the Company, he has a major responsibility for the operation, administration, development will learn valuable trade secrets and growth of other proprietary information relating to the Company's business, ; (iib) his work for Employee's services to the Company has brought him are unique in nature; (c) the Company's business is international in scope; and will continue (d) the Company would be irreparably damaged if Employee was to bring him into close contact with confidential information provide services to any person or entity in violation of the Company and its customers, and (iii) the agreements and covenants restrictions contained in this Section 5 are essential Agreement. Accordingly, as an inducement to protect the business interest of the Company and that the Company will not to enter into this Agreement but for such agreements and covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during Employee agrees that while he is either employed by the Term of this Agreement and for a period of twelve (12) months following Company or receiving any payments from the termination Company pursuant to the terms of this Agreement (such period being referred to herein as the "Termination Restricted Period"), Executive Employee shall not, directly or indirectly, compete with respect to either for himself or for any services other person or products entity, without the prior written consent of the Company which are either offered Company:
(a) anywhere in the world, engage or are being developed by the Company; or, without limiting the generality of the foregoing, be or becomeparticipate in, or agree to assist, advise or be or becomeconnected with (including as an employee, interested in or associated withowner, in any capacity (whether as a partner, shareholder, ownermember, manager, officer, director, executive, principal, agent, creditor, trusteeadvisor, consultant, co-venturer agent or (without limitation by the specific enumeration of the foregoing) otherwise), or permit his name to be used by or render services for, any person or entity engaged in, or making plans to engage in, a business which competes in any manner with the business conducted or proposed to be conducted by the Company and any of its Affiliates (a "Competing Business");
(b) with take any individualaction which might divert from the Company or any of its Affiliates (as defined herein) any opportunity (each, corporation, firm, association, partnership, joint venture an "Opportunity") which would be within the scope of the Company's or other such Affiliate's then business entityand shall offer each Opportunity to the Company, which competes with respect the Company may, in its sole discretion, decide to pursue or not;
(c) solicit, attempt to solicit, aid in the solicitation of or accept any services orders from any person or products entity who is or has been a customer of the Company or its Affiliates, at any time during the period beginning one year prior to the date hereof through the Restrictive Period, to purchase products or services from any person or entity which are either offered products or are being developed services could have been supplied or performed, as the case may be, by the Company; providedCompany or its Affiliates (other than from the Company or its Affiliates);
(d) solicit, however, that Executive may own, solely as an investment, not more than one percent (1%) attempt to solicit or aid in the solicitation of any class person or entity who is or has been a customer, supplier, licensor, licensee or person or entity having any other business relationship with the Company or any of securities its Affiliates, at any time during the period beginning one year prior to the date hereof through the Restrictive Period, to cease doing business with or alter its business relationship with the Company or its Affiliates; or
(e) solicit or hire any person or entity who is a director, officer, employee, independent contractor or agent of the Company or any publicly held corporation of its Affiliates to perform services in competition with the Company whose securities are traded on any national securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and during the Termination Period, Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence Affiliates for any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, including, without limitation, trade secrets, trade "know-how", inventions, customer lists, business plans, operational methods, pricing policies, marketing plans, sales plans, identity of suppliers or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for its Affiliates or to terminate his own benefit. Any technique, method, process or technology used by her employment with the Company shall be considered a "trade secret" for the purposes of this Agreementor its Affiliates.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him or by the Company are the property of the Company and shall not be used by him in any way adverse to the Company's interests. Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board of Directors of the Company. Executive hereby assigns to the Company any rights that he may have in any such trade secret or proprietary information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to Executive's benefit which are derived or received by Executive or any person or business entity controlled by Executive resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above, Executive acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of Section 5, the Company shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court making such termination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Restrictive Covenants. 5.1 Executive 7.1 Employee acknowledges that (i) he she has a major responsibility for the operation, administration, development and growth of the Company's business, ; (ii) his the Company's business is or may become national or international in scope; (iii) her work for the Company has brought him and will continue to bring him her into close contact with confidential information of the Company and its customers, clients; and (iiiiv) the agreements and covenants contained in this Section 5 7 are essential to protect the business interest interests of the Company and that the Company will would not enter into this Agreement but for such agreements and covenants. Accordingly, the Executive Employee covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, that during the Term term of this Agreement and for a period of twelve (12) months following the termination of and, if this Agreement (the "Termination Period")is terminated for any reason other than pursuant to Section 3.1 hereof, Executive for two years following such date of termination, Employee shall not, directly or indirectly, within any county in any state of the United States compete with respect to any services or products of the Company which are either offered or are being developed by the Company as of either such date (the "Company's Business"); or, without limiting the generality of the foregoing, be or become, or agree to be or become, interested in or associated with, in any capacity (whether as a partner, shareholder, owner, officer, director, executiveemployee, principal, agent, creditor, trustee, consultant, co-venturer or otherwise) with ), any individual, corporation, firmcompany, association, partnership, joint venture or other business entity, which competes with respect to any services or products of the Company which are either offered or are being developed by the Company; 's Business, provided, however, that Executive Employee may own, solely as an investment, not more than one percent (1%) % of any class of securities of any publicly held corporation in competition with the Company whose securities are traded on any national securities exchange in the United States States. In the event of AmericaEmployee's termination as a result of Section 3.8, Employee agrees that the two-year period of non-competition referred to above shall be reduced to one year.
5.1.2 During 7.2 Employee hereby expressly acknowledges, understands and agrees that all documents, records, computer discs and programs, marketing and business plans and studies, and business and financial information (collectively referred to in this section as "confidential information") relating to the Term of this Agreement and during the Termination Period, Executive shall not, directly or indirectly, (i) induce or attempt to influence any employee of the Company to leave its employ, (ii) aid or agree to aid any competitor, customer or supplier of the Company in any attempt to hire any person who shall have been employed by the Company within the twelve (12) month period preceding such requested aid, or (iii) induce or attempt to influence any person or business entity who was a customer or supplier of the Company during any portion of said period to transact business with a competitor of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if applicable, and thereafter, Executive shall not other than in the performance of his duties disclose to anyone any information about the affairs of the Company, Business including, without limitation, trade secretsthe names and addresses of the Company's clients and referral sources, trade "know-how"all client records, inventionsfiles, customer listsand other client information, business plansall methods of marketing services, operational setting cases, training programs, fee policies, and management and operating methods, pricing policies, marketing plans, sales plans, identity of suppliers whether they are prepared in whole or customers, sales, profits or other financial information, which is confidential to the Company or is not generally known in the relevant trade, nor shall Executive make use of any such information for his own benefit. Any technique, method, process or technology used part by the Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1.4 Executive hereby agrees that all know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client files and materials made by him Employee or by any other person, are and shall remain the Company are the exclusive property of the Company Company, and shall not be used by him in any way adverse that all such trade secrets are confidential, material, and important to the business and financial success of the Company, and that their disclosure or unauthorized use would seriously and adversely affect the Company's interests. Executive shall Business.
7.3 Employee hereby expressly covenants and agrees that she will not delivereither directly or indirectly, reproduce or in do any way allow such documents or things to be delivered or used by any third party without specific direction or consent of the Board following either during the term of Directors her employment by the Company, or at any time for a two-year period following termination (or such shorter period following termination as may be described below), except as is necessary to perform her obligations in the course of her employment by the Company:
7.3.1 divulge, disclose or communicate to any person, Company, or entity any of the Company. Executive hereby assigns to 's confidential information; or
7.3.2 use, duplicate or copy any of such confidential information; or
7.3.3 otherwise engage in unfair competition with the Company any rights that he may have in any such trade secret or proprietary informationCompany.
5.2 7.4 If Executive Employee breaches, or threatens to commit a breach of Section 5.1 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which shall be enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity.:
5.2.1 Executive 7.4.1 Employee shall account for and pay over to the Company all compensation, profits, and other benefits, after taxes, which inure to ExecutiveEmployee's benefit which are derived or received by Executive Employee or any person or business entity controlled by Executive Employee resulting from any action or transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 7.4.2 Notwithstanding the provisions of subsection 5.2.1 7.4.1 above, Executive Employee acknowledges and agrees that in the event of a violation or threatened violation of any of the provisions of this Section 57, the Company Company, shall have no adequate remedy at law and shall therefore be entitled to enforce each such provision by temporary or permanent injunctive or mandatory relief obtained in any court of competent jurisdiction without the necessity of proving damages, posting any bond or other security, and without prejudice to any other rights and remedies which may be available at law or in equity.
5.3 7.5 If any of the Restrictive Covenants, or any part thereof, is held to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid or unenforceable portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties hereto agree that the court arbitrator making such termination determination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
5.4 7.6 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive Covenants. In the event that the courts of any one or more of such jurisdictions shall hold such Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar bar, or in any way affect the Company's right to the relief provided above in the courts of any other jurisdictions within the geographical scope of such Restrictive Covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
Appears in 1 contract
