Non-Competition Period The "non-competition period" shall begin on January 1, 2017 and shall end twelve (12) months after the Employee's termination of employment; provided, however, that the "non-competition period" shall end on the date Employee's employment ends in the event of Employee's termination for "good reason" (as defined in paragraph 6(d)), or Employee's termination without "cause" (as defined in paragraph 3(d)).
Non-Compete (a) Seller acknowledges that it is familiar with the trade secrets related to the Business and with other confidential and proprietary information concerning the Business. Seller acknowledges and agrees that the Business would be irreparably damaged if Seller were to violate the provisions of this Section 5.14(a). Seller further acknowledges and agrees that the covenants and agreements set forth in this Section 5.14(a) were a material inducement to Purchaser to enter into this Agreement and to perform its obligations hereunder, and that Purchaser would not obtain the benefit of the bargain set forth in this Agreement if Seller were to breach the provisions of this Section 5.14(a). Therefore, in further consideration for the payment of the Purchase Price hereunder, and in order to protect the value of the Business acquired by Purchaser hereunder (including the goodwill inherent in the Business), during the Restricted Period, Seller will not, and will cause each of its Subsidiaries not to, directly or indirectly, for its own account or on behalf of or together with any other Person, engage in, participate in, own, manage, control or participate in the ownership, management or control of a Person engaged in (i) the development, manufacture, marketing or sale of Covered Products, or (ii) the sale of spare parts for the provision of repair or maintenance services with respect to equipment constituting Covered Products, in each case, except to the extent permitted under the Seller Allowed Field (collectively, such categories of activity, the “Seller Excluded Fields”).
(b) Notwithstanding Section 5.14(a) above, nothing in this Agreement shall restrict Seller or any of its Subsidiaries from (collectively, the categories of activity below, the “Seller Allowed Fields”):
(i) developing, manufacturing, marketing or selling any products other than Covered Products or spare parts for or the provision of repair or maintenance services with respect to equipment constituting Covered Products, including developing, manufacturing, marketing and selling any products primarily relating to printing by offset, inkjet, electro photographic, and gravure processes;
(ii) developing any CtP Device or enhancements thereto or modifications thereof that may be useful in imaging any Thermally Imageable Film but are not developed for the purpose of creating such utility or manufacturing, marketing or selling such CtP Device or a CtP Device so enhanced or modified;
(iii) developing or manufacturing a Functional Printing-Related Product; provided, so long as the AM3D Supply Agreement is in effect the foregoing exception for manufacturing shall not permit production scale manufacturing of Thermally Imageable Films or Flexographic Plates being supplied under the AM3D Supply Agreement;
(iv) the internal use of a Covered Product by Seller or its Subsidiary;
(v) marketing or selling any Functional Printing-Related Product to any current or potential, or future, Functional Printing Customer or marketing any Covered Product to any potential Functional Printing Customer (with sales of any Covered Products that are not Functional Printing-Related Products to be sold to Functional Printing Customers by a Person other than Seller or its Subsidiaries);
(vi) the sale of spare parts for the provision of repair or maintenance services with respect to equipment constituting Covered Products to the extent then permitted to be sold pursuant to clause (v) and provided that Covered Products that are not Functional Printing-Related Products are to be sold exclusively by Purchaser;
(vii) licensing, transferring, or selling or otherwise monetizing in any manner, directly or indirectly, any Intellectual Property that is owned by Seller or licensed to Seller by any Third Party, excluding any Intellectual Property licensed by or to Seller or any of its Subsidiaries (or any assignee or successor) under any Closing Agreement;
(viii) performing their respective binding obligations under this Agreement and/or the Closing Agreements;
(ix) owning five percent (5%) or less of the outstanding equity securities of any class of any issuer whose securities are listed and traded on a nationally recognized securities exchange or market (whether or not in the United States of America) provided that such ownership is passive;
(x) owning, affiliating with, or conducting any activity with respect to, a Person that engages, either directly or indirectly, in any activity prohibited by this Section 5.14 (any such Person, together with all of its Affiliates, a “Competing Person” and any such business that engages in such activity, a “Competing Business”) that is the result of: (A) a Business Combination involving one or more of Seller or any of its Subsidiaries and any Competing Person, or (B) the acquisition of any Competing Person or any securities in any Competing Person by Seller or any of its Subsidiaries, if, in the case of either (A) or (B), no more than (x) ten percent (10%) of the total annual consolidated revenues or EBITDA of such Competing Person and (y) $100,000,000 of the total annual consolidated revenues or $25,000,000 of annual EBITDA of such Competing Person, taken as a whole, and prior to any Business Combination with Seller or any of its Subsidiaries, are generated from the Competing Business; provided, however, that Seller and its Subsidiaries may proceed with any such ownership, affiliation, or conduct notwithstanding such Competing Business being in excess of the aforementioned thresholds, if, and only if, Seller and the applicable Subsidiaries or the Competing Person, as applicable, (A) enter into a definitive agreement no later than twelve (12) months after the consummation of such ownership, affiliation or conduct to divest a sufficient portion of such Competing Business or (B) wind down, no later than twelve (12) months after the consummation of such acquisition, a sufficient portion of such Competing Business, such that, after giving effect to such divestiture or wind down, no more than (x) ten percent (10%) of the total annual consolidated revenues or annual EBITDA of such Competing Person and (y) $100,000,000 of the total annual consolidated revenues or $25,000,000 of annual EBITDA of such Competing Person, taken as a whole, are generated from the Competing Business; or
(xi) acquiring a Competing Person or more than five percent (5%) of the outstanding equity securities of any class of any Competing Person that generates more than (x) ten percent (10%) of the total annual consolidated revenues or EBITDA of such Competing Person, or (y) $100,000,000 of the total annual consolidated revenues or $25,000,000 of annual EBITDA of such Competing Person, taken as a whole, from the Competing Business; provided, however, that the Restricted Parties may proceed with any such acquisition notwithstanding such Competing Business being in excess of the aforementioned thresholds, if, and only if, Seller and the applicable Subsidiaries (A) enter into a definitive agreement no later than twelve (12) months after the consummation of such acquisition to divest a sufficient portion of such Competing Business or (B) wind down, no later than twelve (12) months after the consummation of such acquisition, a sufficient portion of such Competing Business, such that, after giving effect to such divestiture or wind down, no more than (x) ten percent (10%) of the total annual consolidated revenues or annual EBITDA of such Competing Person and (y) no more than $100,000,000 of the total annual consolidated revenues or $25,000,000 of annual EBITDA of such Competing Person, taken as a whole, are generated from the Competing Business.
(c) If Seller or any of its Subsidiaries is involved in a Business Combination where neither Seller nor any of its Subsidiaries prior to the Business Combination is the Controlling Entity after the Business Combination, the restrictions contained in this Section 5.14 shall not apply to the operations or businesses of any third party(ies) to the Business Combination or any of such third party’s Subsidiaries which were Subsidiaries of such third party prior to the Business Combination, in each case, as conducted prior to the consummation of the Business Combination, but shall only apply to the operations of Seller or its Subsidiaries or, if the operations of Seller or any of its Subsidiaries is integrated or consolidated with any other business of such third party of any of its Subsidiaries, the resulting business after such integration or consolidation. Seller shall be the “Controlling Entity” if (1) through a Business Combination Seller or any of its Subsidiaries controls more than fifty percent (50%) of the stock, board seats, or voting rights of another entity, (2) a majority of the directors of the surviving entity following a Business Combination are individuals who served on the board of directors of Seller immediately prior to the consummation of such Business Combination or (3) the holders of a majority of the outstanding equity interests of the surviving entity following a Business Combination were holders of equity interests of Seller immediately prior to the consummation of such Business Combination.
(d) Seller agrees that this Section 5.14 (including the provisions relating to duration, geographical area and scope) is reasonable and necessary to protect and preserve Purchaser’s and the Business’ legitimate business interests and the value of the Business, and to prevent an unfair advantage from being conferred on Seller. If any provision of this Section 5.14 would be held to be excessively broad as to duration, geographical area, scope, activity or subject, for any reason, such provision shall be modified, by limiting and reducing it, so as to be enforceable to the extent permitted by applicable Law.
Non-Solicitation/Non-Compete Executive hereby covenants and agrees that, for a period of one (1) year following his termination of employment with the Bank (other than a termination of employment following a Change in Control), Executive shall not, without the written consent of the Bank, either directly or indirectly:
(i) solicit, offer employment to, or take any other action intended (or that a reasonable person acting in like circumstances would expect) to have the effect of causing any officer or employee of the Bank, or any of its respective subsidiaries or affiliates, to terminate his employment and accept employment or become affiliated with, or provide services for compensation in any capacity whatsoever to, any business whatsoever that competes with the business of the Bank, or any of their direct or indirect subsidiaries or affiliates, that has headquarters or offices within 25 miles of any location(s) in which the Bank has business offices or has filed an application for regulatory approval to establish an office (the “Restricted Territory”);
(ii) become an officer, employee, consultant, director, independent contractor, agent, joint venturer, partner or trustee of any savings bank, savings and loan association, savings and loan holding company, credit union, bank or bank holding company, insurance company or agency, any mortgage or loan broker or any other entity that competes with the business of the Bank or any of their direct or indirect subsidiaries or affiliates, that: (i) has a headquarters within the Restricted Territory or (ii) has one or more offices, but is not headquartered, within the Restricted Territory, but in the latter case, only if Executive would be employed, conduct business or have other responsibilities or duties within the Restricted Territory; or
(iii) solicit, provide any information, advice or recommendation or take any other action intended (or that a reasonable person acting in like circumstances would expect) to have the effect of causing any customer of the Bank to terminate an existing business or commercial relationship with the Bank.
Non-Solicitation; Non-Competition (a) In further consideration of the compensation to be paid to Executive hereunder, Executive acknowledges that in the course of his employment with the Company Group, he has and will continue to become familiar with the Company Group’s trade secrets and with other Confidential Information concerning the Company Group and that his services shall be of special, unique and extraordinary value to the Company Group. Therefore, Executive agrees that while an employee of the Company Group, Executive will not directly or indirectly compete against any member of the Company Group or directly or indirectly divert or attempt to divert any business from any member of the Company Group anywhere such company is doing business.
(b) Executive agrees that for the twelve (12) months following the termination of his employment, Executive will not, directly or indirectly, solicit for the purpose of providing, or otherwise provide, any products or services competitive with the products or services offered by (or planned to be offered by, assuming Executive was aware of those plans while employed by Company) the Company Group to any customer of the Company Group with whom/which Executive had contact on behalf of the Company Group during the twenty-four (24) months preceding the end of Executive’s employment with the Company.
(c) Executive agrees that for the twelve (12) months following the termination of his employment, Executive will not, directly or indirectly, solicit for the purpose of providing, or otherwise provide, any products or services competitive with the products or services offered by (or planned to be offered by, assuming Executive was aware of those plans while employed by Company) the Company Group to any customer of the Company Group about whom/which Executive acquired non-public information during the twenty-four (24) months preceding the end of Executive’s employment with the Company.
(d) Executive agrees that for the twelve (12) months following the termination of his employment, Executive will not request or advise any customer, supplier, licensee, licensor, landlord or other business relation of the Company Group with whom/which Executive had contact on behalf of the Company Group during the twenty-four (24) months preceding the termination of Executive’s employment with the Company to withdraw, curtail or cancel its business dealings with such member of the Company Group.
(e) Executive agrees that for the twelve (12) months following the termination of his employment, Executive will not directly or indirectly recruit or solicit any employee of the Company Group for employment or encourage any employee of the Company Group to leave such member of the Company Group’s employ. An employee shall be deemed covered by this clause (e) while employed by the Company Group and for a period of twelve (12) months thereafter.
(f) In addition, Executive agrees that for the twelve (12) months following the termination of his employment, Executive will not provide, in any capacity, Restricted Services to any business located in the United States or Germany which provides services or products competitive with those sold or provided by any member of the Company Group during the twenty-four (24) months preceding the end of Executive’s employment with the Company. The term “Restricted Services” shall mean services similar to those which Executive provided any member of the Company Group during the twenty-four (24) months preceding Executive’s termination of employment, for whatever reason, and which would involve use or disclosure of the Company’s Confidential Information.
Non-Competition; Non-Solicitation; Non-Disparagement (a) The Company shall provide Employee access to Confidential Information for use only during the Employment Period, and Employee acknowledges and agrees that the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill of the Company Group, and as an express incentive for the Company to enter into this Agreement and employ Employee hereunder, Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in scope and purpose in all respects, do not interfere with public interests, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.
(b) During the Prohibited Period, Employee shall not, without the prior written approval of the Board, directly or indirectly, for Employee or on behalf of or in conjunction with any other person or entity of any nature:
(i) engage in or participate within the Market Area in competition with any member of the Company Group in any aspect of the Business, including by directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of any member of the Company Group;
(ii) appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group to cease or lessen such customer’s or supplier’s business with any member of the Company Group; or
(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group.
(c) Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 9 and in this Section 10, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(d) The covenants in this Section 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have the following meanings:
Employment; Noncompetition; Nondisclosure The Manager has not been notified that any of its executive officers or key employees named in the General Disclosure Package (each, a “Company-Focused Professional”) plans to terminate his or her employment with the Manager or Colony, as the case may be. Neither the Manager nor, to the knowledge of the Manager, any Company-Focused Professional is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Manager as described in the Registration Statement, the General Disclosure Package and the Prospectus.
Non-Competition; Non-Solicitation (a) In consideration of this Agreement, the Executive agrees that, for the period ending one year after the termination of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Non-Competition a. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its affiliates and accordingly agrees as follows:
(1) During the Employment Term and for a period of nine months following the date Executive ceases to be employed by the Company for any reason (the “Restricted Period”), Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”), directly or indirectly solicit or assist in soliciting in competition with the Company, the business of any customer of the Company or prospective customer of the Company:
(i) with whom Executive had personal contact or dealings on behalf of the Company during the one year period preceding Executive’s termination of employment;
(ii) with whom employees reporting to Executive have had personal contact or dealings on behalf of the Company during the one year immediately preceding Executive’s termination of employment; or
(iii) for whom Executive had direct or indirect responsibility during the one year immediately preceding Executive’s termination of employment.
(2) During the Restricted Period, Executive will not directly or indirectly:
(i) engage in any coal-related business that competes with the business of the Company or its affiliates (including, without limitation, businesses which the Company or its affiliates have specific plans to conduct in the future and as to which Executive is aware of such planning) in the United States (a “Competitive Business”);
(ii) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person) who or which engages in a Competitive Business;
(iii) 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, trustee or consultant;
(iv) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of this Agreement) between the Company or any of its affiliates and customers, clients, suppliers partners, members or investors of the Company or its affiliates, or
(v) disparage the Company or any of its stockholders, directors, officers, employees or agents.
(3) Notwithstanding anything to the contrary in this Agreement, Executive may, directly or indirectly own, solely as an investment, securities of any Person engaged in the business of the Company or its affiliates which are publicly traded on a national or regional stock exchange or on the over-the-counter market if Executive (i) is not a controlling person of, or a member of a group which controls, such person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person.
(4) During the Employment Term and, for a period of two years following the date Executive ceases to be employed by the Company, Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(i) solicit or encourage any employee of the Company or its affiliates to leave the employment of the Company or its affiliates; or
(ii) hire any such employee who was employed by the Company or its affiliates as of the date of Executive’s termination of employment with the Company or who left the employment of the Company or its affiliates coincident with, or within one year prior to or after, the termination of Executive’s employment with the Company.
(5) During the Restricted Period, Executive will not, directly or indirectly, solicit or encourage to cease to work with the Company or its affiliates any consultant then under contract with the Company or its affiliates.
b. It is expressly understood and agreed that although Executive and the Company consider the restrictions contained in this Section 8 to be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
Noncompetition; Nonsolicitation (a) The Executive acknowledges that in the course of his employment with the Company pursuant to this Agreement he will become familiar, and during the course of his employment by the Company or any of its subsidiaries or affiliates or any predecessor thereof prior to the date of this Agreement he has become familiar, with trade secrets and customer lists of and other confidential information concerning the Company and its subsidiaries and affiliates and predecessors thereof and that his services have been and will be of special, unique and extraordinary value to the Company.
(b) The Executive agrees that during the Employment Period and for one year thereafter in the case of either Termination for Good Reason following a Change in Control or Termination without Cause, or for two years thereafter in the case of termination of employment for any other reason, the (“Noncompetition Period”) he shall not in any manner, directly or indirectly, through any person, firm or corporation, alone or as a member of a partnership or as an officer, director, stockholder, investor or employee of or in any other corporation or enterprise or otherwise, engage or be engaged, or assist any other person, firm corporation or enterprise in engaging or being engaged, in any business then actively being conducted by the Company in any geographic area in which the Company is conducting such business (whether through manufacturing or production, calling on customers or prospective customers, or otherwise). Notwithstanding the foregoing, subsequent to the Employment Period the Executive may engage or be engaged, or assist any other person, firm, corporation or enterprise in engaging or being engaged, in any business activity which is not competitive with a business activity being conducted by the Company at the time subsequent to the Employment Period that the Executive first engages or assists in such business activity.
(c) The Executive further agrees that during the Noncompetition Period he shall not in any manner, directly or indirectly (i) induce or attempt to induce any employee of the Company or of any of its subsidiaries or affiliates to terminate or abandon his employment, or any customer of the Company or any of its subsidiaries or affiliates to terminate or abandon its relationship, for any purpose whatsoever, or (ii) in connection with any business to which Section 6(b) applies, call on, service, solicit or otherwise do business with any then current or prospective customer of the Company or of any of its subsidiaries or affiliates.
(d) Nothing in this Section 6 shall prohibit the Executive from being (i) a stockholder in a mutual fund or a diversified investment company or (ii) a passive owner of not more than 2% of the outstanding stock of any class of a corporation any securities of which are publicly traded, so long as the Executive has no active participation in the business of such corporation.
(e) If, at the time of enforcement of this Section 6, a court holds that the restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum period, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law.
Non-Competition During Employment Executive agrees during the Basic Term, and any extension of the Basic Term under this Agreement, he will not compete with the Company by engaging in the conception, design, development, production, marketing, or servicing of any product or service that is substantially similar to the products or services which the Company provides, and that he will not work for, in any capacity, assist, or became affiliated with as an owner, partner, etc., either directly or indirectly, any individual or business which offer or performs services, or offers or provides products substantially similar to the services and products provided by Company.
