Competitive Activity. (i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant and ending on the date that is 12 months after the Termination Date (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below), directly or indirectly, violates any of the following prohibitions: (I) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any person, firm, part-nership, 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 or any of its Subsidiaries, the business of any client or prospective client: (1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year period preceding the Termination Date; (2) with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year immediately preceding the Termination Date; or (3) for whom the Participant had direct or indirect responsibility during the one year immediately preceding the Termination Date. (II) During the Restricted Activity Period, the Participant will not directly or indirectly: (1) engage in any business that competes with the business of the Company or any of its Subsidiaries, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitamin/mineral supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries (including, without limitation, any other business which the Company or any of its Subsidiaries have plans to engage in as of the Termination Date) in any geographical area where the Company or any of its Subsidiaries conduct business (a “Competitive Business”); (2) 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; (3) 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; or (4) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the Date of Grant) between the Company or any of its Subsidiaries and customers, clients, suppliers, or investors of the Company or any of its Subsidiaries. Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity engaged in the business of the Company or any of its Subsidiaries which are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (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. (III) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly: (1) solicit or encourage any employee of the Company or any of its Subsidiaries to leave the employment of the Company or any of its Subsidiaries; or (2) hire any such employee who was employed by the Company or any of its Subsidiaries as of the Termination Date or who left the employment of the Company or any of its Subsidiaries coincident with, or within six (6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries for at least six (6) months. (IV) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries any consultant then under contract with the Company or any of its Subsidiaries. (ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 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 the Participant, 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.
Appears in 2 contracts
Sources: Performance Share Unit Agreement (Catalent, Inc.), Performance Share Unit Agreement (Catalent, Inc.)
Competitive Activity. (i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant date hereof and ending on the later of (x) the date that is 12 months after the Termination Date date the Participant’s Employment with the Company and its Subsidiaries is terminated or (y) the maximum number of years of base salary the Participant is entitled to receive as severance under any agreement with, or plan or policy of the Company or an Affiliate (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below)person or entity, directly or indirectly, indirectly violates any of the following prohibitions:
(IA) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any person, firm, part-nership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”), directly or indirectly, not solicit or assist in soliciting in competition with the Company or any of its Subsidiaries, a Competitive Business (as defined below) the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one one-year period preceding the Termination DateParticipant’s termination of Employment;
(2) with whom employees directly reporting to the Participant (or the Participant’s direct reports) have had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year immediately preceding the Termination DateParticipant’s termination of Employment; or
(3) for whom the Participant had direct or indirect responsibility during the one year immediately preceding the Termination DateParticipant’s termination of Employment.
(IIB) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that is engaged in, or has plans to engage in, at any time during the Restricted Period, any activity that competes with in the business of manufacturing and marketing food products that directly compete with the core brands of the Company or any of its Subsidiaries, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitamin/mineral supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries (including, without limitation, any other business which the Company or any of its Subsidiaries have plans to engage in as of the Termination Date (and for such purpose, a “core brand” shall be any brand generating annual revenues in an amount equal to at least 5% of the Company’s annual revenues, in the fiscal year preceding the fiscal year of such Termination Date) in any geographical area that is within 100 miles from any geographical area where the Company or any of its Subsidiaries conduct business Affiliates manufactures and markets its products or services (a “Competitive Business”);
(2) enter the employ of, or render any services to, any Person (or any division or controlled or controlling Affiliate affiliate of any Person) who or which engages in a Competitive Business;
(3) 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; or
(4) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the Date date of Grantthis Agreement) between the Company or any of its Subsidiaries Affiliates and customers, clients, suppliers, partners, members or investors of the Company or any of its Subsidiaries. Affiliates.
(C) Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries a Competitive Business which are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which controls, such Person person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person.
(IIID) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries Affiliates to leave the employment of the Company or any of its SubsidiariesAffiliates; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries Affiliates as of the Termination Date date of the Participant’s termination of Employment with the Company or who left the employment of the Company or any of its Subsidiaries Affiliates coincident with, or within six 120 days (6one year in the case of any such employee who reported directly to the Participant immediately preceding the Participant’s termination of Employment (or the Participant’s direct reports)) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by termination of the Company or any of its Subsidiaries for at least six (6) monthsParticipant’s Employment with the Company.
(IV3) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries Affiliates any consultant then under contract with the Company or any its Affiliates, is such action would result in the Company being disadvantaged. Any solicitation or hiring, that the Participant is not personally involved in, of its Subsidiaries.an employee or former employee of the Company through general advertising shall not, of itself, be a breach of this Section 6(a)(i)(D)
(ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 6 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 the Participant, 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
(iii) The period of time during which the provisions of this Section 6 shall be in effect shall be extended by the length of time during which the Participant is in breach of the terms hereof as determined by any court of competent jurisdiction on the Company’s application for injunctive relief.
Appears in 2 contracts
Sources: Performance Restricted Share Agreement (Pinnacle Foods Inc.), Performance Restricted Share Agreement (Pinnacle Foods Inc.)
Competitive Activity. To the extent a Participant lives in a jurisdiction where restrictive covenants are void as against public policy, this Section 6(b) shall be considered deleted from and therefore not part of this Agreement.
(i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant and ending on the date that is 12 months after the Termination Date (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below), directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any individual, person, firm, part-nership, 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 or any of its SubsidiariesSubsidiaries or Affiliates, the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year period preceding the Termination Date;
(2) with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year immediately period preceding the Termination Date; or
or (3) for whom the Participant had direct or indirect responsibility during the one one-year immediately period preceding the Termination Date.
(II) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that competes with the business of the Company or any of its SubsidiariesSubsidiaries or Affiliates, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitaminvitamins/mineral minerals/supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries or Affiliates (including, without limitation, any other business which that the Company or any of its Subsidiaries or Affiliates have plans to engage in as of the Termination Date) in any geographical area where the Company or any of its Subsidiaries conduct or Affiliates conducts business (a “Competitive Business”);
(2) 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;
(3) 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; or
(4) interfere with, or attempt to interfere with, any business relationships relationship (whether formed before, on or after the Date of Grant) between the Company or any of its Subsidiaries or Affiliates and customersany customer, clientsclient, supplierssupplier, or investors investor of the Company or any of its SubsidiariesSubsidiaries or Affiliates. Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries which Competitive Business that are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which that controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person. Any such qualifying ownership shall not be deemed to be engaging in Competitive Activity or a Restrictive Covenant Violation for purposes of this Agreement.
(III) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries or Affiliates to leave the employment of the Company or any of its Subsidiariessuch Employment; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries or Affiliates as of the Termination Date or who left the employment of the Company or any of its Subsidiaries or Affiliates coincident with, or within six (6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries or Affiliates for at least six (6) months.
(IV) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries or Affiliates any consultant then under contract with the Company or any of its Subsidiaries.
Subsidiaries or Affiliates. (ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b6(b) 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 the Participant, 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 hereinin this Section 6(b).
Appears in 2 contracts
Sources: Performance Restricted Stock Agreement (Catalent, Inc.), Performance Restricted Stock Agreement (Catalent, Inc.)
Competitive Activity. To the extent a Participant lives in a jurisdiction where restrictive covenants are void as against public policy, this Section 6(b) shall be considered deleted from and therefore not part of this Agreement.
(i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant and ending on the date that is 12 months after the Termination Date (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below), directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any individual, person, firm, part-nership, 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 or any of its SubsidiariesSubsidiaries or Affiliates, the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year period preceding the Termination Date;
(2) with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year immediately period preceding the Termination Date; or
(3) for whom the Participant had direct or indirect responsibility during the one one-year immediately period preceding the Termination Date.
(II) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that competes with the business of the Company or any of its SubsidiariesSubsidiaries or Affiliates, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitaminvitamins/mineral minerals/supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries or Affiliates (including, without limitation, any other business which that the Company or any of its Subsidiaries or Affiliates have plans to engage in as of the Termination Date) in any geographical area where the Company or any of its Subsidiaries conduct or Affiliates conducts business (a “Competitive Business”);
(2) 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;
(3) 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; or
(4) interfere with, or attempt to interfere with, any business relationships relationship (whether formed before, on or after the Date of Grant) between the Company or any of its Subsidiaries or Affiliates and customersany customer, clientsclient, supplierssupplier, or investors investor of the Company or any of its SubsidiariesSubsidiaries or Affiliates. Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries which Competitive Business that are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which that controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person. Any such qualifying ownership shall not be deemed to be engaging in Competitive Activity or a Restrictive Covenant Violation for purposes of this Agreement.
(III) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries or Affiliates to leave the employment of the Company or any of its Subsidiariessuch Employment; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries or Affiliates as of the Termination Date or who left the employment of the Company or any of its Subsidiaries or Affiliates coincident with, or within six (6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries or Affiliates for at least six (6) months.
(IV) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries or Affiliates any consultant then under contract with the Company or any of its SubsidiariesSubsidiaries or Affiliates.
(ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b6(b) 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 the Participant, 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 hereinin this Section 6(b).
Appears in 2 contracts
Sources: Performance Restricted Stock Agreement (Catalent, Inc.), Performance Restricted Stock Agreement (Catalent, Inc.)
Competitive Activity. (i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant date hereof and ending on the later of (x) the date that is 12 months after the Termination Date date the Participant’s Employment with the Company and its Subsidiaries is terminated or (y) the maximum number of years of base salary the Participant is entitled to receive as severance under any agreement with, or plan or policy of the Company or an Affiliate (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below)person or entity, directly or indirectly, indirectly violates any of the following prohibitions:
(IA) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any person, firm, part-nership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”), directly or indirectly, not solicit or assist in soliciting in competition with the Company or any of its Subsidiaries, a Competitive Business (as defined below) the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one one-year period preceding the Termination DateParticipant’s termination of Employment;
(2) with whom employees directly reporting to the Participant (or the Participant’s direct reports) have had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year immediately preceding the Termination DateParticipant’s termination of Employment; or
(3) for whom the Participant had direct or indirect responsibility during the one year immediately preceding the Termination DateParticipant’s termination of Employment.
(IIB) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that is engaged in, or has plans to engage in, at any time during the Restricted Period, any activity that competes with in the business of manufacturing and marketing food products that directly compete with the core brands of the Company or any of its Subsidiaries, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitamin/mineral supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries (including, without limitation, any other business which the Company or any of its Subsidiaries have plans to engage in as of the Termination Date (and for such purpose, a “core brand” shall be any brand generating annual revenues in an amount equal to at least 5% of the Company’s annual revenues, in the fiscal year preceding the fiscal year of such Termination Date) in any geographical area that is within 100 miles from any geographical area where the Company or any of its Subsidiaries conduct business Affiliates manufactures and markets its products or services (a “Competitive Business”);
(2) enter the employ of, or render any services to, any Person (or any division or controlled or controlling Affiliate affiliate of any Person) who or which engages in a Competitive Business;
(3) 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; or
(4) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the Date date of Grantthis Agreement) between the Company or any of its Subsidiaries Affiliates and customers, clients, suppliers, partners, members or investors of the Company or any of its Subsidiaries. Affiliates.
(C) Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries a Competitive Business which are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which controls, such Person person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person.
(IIID) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries Affiliates to leave the employment of the Company or any of its SubsidiariesAffiliates; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries Affiliates as of the Termination Date date of the Participant’s termination of Employment with the Company or who left the employment of the Company or any of its Subsidiaries Affiliates coincident with, or within six 120 days (6one year in the case of any such employee who reported directly to the Participant immediately preceding the Participant’s termination of Employment (or the Participant’s direct reports)) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by termination of the Company or any of its Subsidiaries for at least six (6) monthsParticipant’s Employment with the Company.
(IV3) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries Affiliates any consultant then under contract with the Company or any its Affiliates, is such action would result in the Company being disadvantaged. Any solicitation or hiring, that the Participant is not personally involved in, of its Subsidiaries.an employee or former employee of the Company through general advertising shall not, of itself, be a breach of this Section 7(a)(i)(D)
(ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 7 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 the Participant, 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
(iii) The period of time during which the provisions of this Section 7 shall be in effect shall be extended by the length of time during which the Participant is in breach of the terms hereof as determined by any court of competent jurisdiction on the Company’s application for injunctive relief.
Appears in 2 contracts
Sources: Performance Share Unit Agreement (Pinnacle Foods Inc.), Performance Share Unit Agreement (Pinnacle Foods Inc.)
Competitive Activity. (ia) The Participant Executive shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant date hereof and ending on the later of (x) the date that is 12 months after the Termination Date date the Executive’s employment with the Company and its Subsidiaries is terminated or (y) the maximum number of years of base salary the Executive is entitled to receive as severance (the “Restricted Activity Period”), the ParticipantExecutive, whether on the ParticipantExecutive’s own behalf or on behalf of or in conjunction with any other Person (as defined below)person or entity, directly or indirectly, indirectly violates any of the following prohibitions:
(Ii) During the Restricted Activity Period, the Participant Executive will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any person, firm, part-nership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”), directly or indirectly, not solicit or assist in soliciting in competition with the Company or any of its Subsidiaries, a Competitive Business (as defined below) the business of any client or prospective client:
(1A) with whom the Participant Executive had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one one-year period preceding the Termination DateExecutive’s termination of employment;
(2B) with whom employees directly reporting to the Participant Executive (or the Executive’s direct reports) have had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year immediately preceding the Termination DateExecutive’s termination of employment; or
(3C) for whom the Participant Executive had direct or indirect responsibility during the one year immediately preceding the Termination DateExecutive’s termination of employment.
(IIii) During the Restricted Activity Period, the Participant Executive will not directly or indirectly:
(1A) engage in any business that is engaged in, or has plans to engage in, at any time during the Restricted Period, any activity that competes with in the business of manufacturing and marketing food products that directly compete with the core brands of the Company or any of its Subsidiaries, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitamin/mineral supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries (including, without limitation, any other business which the Company or any of its Subsidiaries have plans to engage in as of the Termination Date (and for such purpose, a “core brand” shall be any brand generating annual revenues in an amount equal to at least 5% of the Company’s annual revenues, in the fiscal year preceding the fiscal year of such Termination Date) in any geographical area that is within 100 miles of any geographical area where the Company or any of its Subsidiaries conduct business Affiliates manufactures and markets its products or services (a “Competitive Business”);
(2B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling Affiliate affiliate of any Person) who or which engages in a Competitive Business;
(3C) 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; or
(4D) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the Date date of Grantthis Agreement) between the Company or any of its Subsidiaries Affiliates and customers, clients, suppliers, partners, members or investors of the Company or any of its Subsidiaries. Affiliates.
(iii) Notwithstanding anything to the contrary in this Agreement, the Participant Executive may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries a Competitive Business which are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant Executive (i) is not a controlling person of, or a member of a group which controls, such Person person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person.
(IIIiv) During the Restricted Activity Period, the Participant Executive will not, whether on the ParticipantExecutive’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1A) solicit or encourage any employee of the Company or any of its Subsidiaries Affiliates to leave the employment of the Company or any of its SubsidiariesAffiliates; or
(2B) hire any such employee who was employed by the Company or any of its Subsidiaries Affiliates as of the Termination Date date of the Executive’s termination of employment with the Company or who left the employment of the Company or any of its Subsidiaries Affiliates coincident with, or within six 120 days (6one year in the case of any such employee who reported directly to the Executive immediately preceding the Executive’s termination of employment (or the Executive’s direct reports)) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by termination of the Company or any of its Subsidiaries for at least six (6) monthsExecutive’s employment with the Company.
(IVv) During the Restricted Activity Period, the Participant Executive will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries Affiliates any consultant then under contract with the Company or any its Affiliates, is such action would result in the Company being disadvantaged. Any solicitation or hiring, that the Executive is not personally involved in, of its Subsidiariesan employee or former employee of the Company through general advertising shall not, of itself, be a breach of this Section 6.1(a)(iv).
(iib) It is expressly understood and agreed that although the Participant Executive and the Company consider the restrictions contained in this Section 10(b) 6.1 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 the ParticipantExecutive, 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
(c) The period of time during which the provisions of this Section 6.1 shall be in effect shall be extended by the length of time during which the Executive is in breach of the terms hereof as determined by any court of competent jurisdiction on the Company’s application for injunctive relief.
Appears in 2 contracts
Sources: Management Unit Subscription Agreement (Pinnacle Foods Finance LLC), Management Unit Subscription Agreement (Pinnacle Foods Finance LLC)
Competitive Activity. (a) In the event that the Participant engages in Competitive Activity (as defined in Section 6(c) hereof), the Participant shall immediately forfeit, without any consideration being paid therefor, any outstanding portion of the Option (including both vested Option Shares and unvested Option Shares). In addition, to the extent that the Participant engages in Competitive Activity following the date on which the Participant exercises any portion of the Option (i) The the Company may repurchase from the Participant each share of Common Stock the Participant received in connection with such exercise for the lower of (x) the Per Share Exercise Price and (y) the Fair Market Value of such share as of the date of repurchase, and (ii) to the extent that the Participant has sold any shares of Common Stock the Participant received in connection with such exercise, the Participant shall be deemed required to have engaged in “Competitive Activity” ifpay to the Company the excess, during if any, of the period commencing price for which the Participant sold such share and the Per Share Exercise Price with respect to each share (less any taxes paid by the Participant on such excess; provided that to the Date extent the Participant receives a refund of Grant and ending on the date that is 12 months after the Termination Date (the “Restricted Activity Period”)any such paid taxes, the Participantamount of such refund shall be subject to repayment to the Company pursuant to this Section 6(a)).
(b) For the avoidance of doubt, whether on for a Competitive Activity to result in the provisions of Section 6(a) hereof to apply, such Competitive Activity must be undertaken during the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below), directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any person, firm, part-nership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”), directly or indirectly, solicit or assist in soliciting in competition employment with the Company or any of its Subsidiaries, the business of any client Subsidiaries or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year period preceding after the Participant’s Termination Date;for any reason.
(2c) with whom employees reporting For purposes of this Section 6, “Competitive Activity” shall have the meaning ascribed to the Participant have had personal contact such term in any written offer letter or dealings on behalf of employment or severance agreement between the Company or any of its Subsidiaries during the one year immediately preceding the Termination Date; or
(3) for whom the Participant had direct or indirect responsibility during the one year immediately preceding the Termination Date.
(II) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that competes with the business Subsidiary of the Company or any of its Subsidiariesand such Participant or, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitamin/mineral supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of in the type developed, manufactured or sold by the Company or any of its Subsidiaries (including, without limitation, any other business which the Company or any of its Subsidiaries have plans to engage in as of the Termination Date) in any geographical area where the Company or any of its Subsidiaries conduct business (a “Competitive Business”);
(2) enter the employ of, or render any services to, any Person (or any division or controlled or controlling Affiliate absence of any Person) who or which engages in such written agreement, shall mean, with respect to a Competitive Business;
(3) acquire a financial interest inParticipant, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; or
(4) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after during the Date term of Grant) between such Participant’s employment with the Company or any of its Subsidiaries and customers, clients, suppliers, or investors of during the Company or any of its Subsidiaries. Notwithstanding anything to the contrary in this Agreement, the Participant mayone year period immediately following such Participant’s Termination, directly or indirectly ownindirectly, solely for himself or for any other Person, participating in any Competitive Business (as an investment, securities defined in this Section 6(c)) or any business in which the Company is engaged or in which the Participant is aware that the Company is planning to engage as of such Participant’s Termination; provided that the passive ownership by such Participant of not more than two and a half percent (2.5%) of the outstanding shares of any entity engaged in the business class of the Company or any capital stock of its Subsidiaries a corporation which are is publicly traded on a national or regional stock securities exchange or on will not be deemed to be a Competitive Activity, so long as such Participant has no active participation in the over-the-counter market if the Participant (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 business of such Person.
(III) During corporation. “Competitive Business” means any business in the Restricted Activity Period, geographic area set forth in the Participant will not, whether on the Participant’s own behalf non-competition provision in any written employment or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of severance agreement between the Company or any Subsidiary of its Subsidiaries to leave the employment Company and such Participant (or, in the absence of the designation of any such geographic area in any such written agreement, any geographic area or country where the Company or any Subsidiary of its Subsidiaries; or
(2the Company generates revenues) hire engaged in the “Restricted Business” set forth in the non-competition provision in any such employee who was employed by written employment or severance agreement between the Company or any of its Subsidiaries as of the Termination Date or who left the employment Subsidiary of the Company and such Participant (or, in the absence of the designation of any such “Restricted Business” in any such written agreement, in the provision of services in the electronic payment processing industry or related to any product, business, activity or service line of its Subsidiaries coincident withany person, entity or company that is in competition with any product, business, activity, or within six (6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries for at least six (6) months.
(IV) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries any consultant then under contract with the Company or any of its Subsidiaries.
(ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 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 the Participant, 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 service line of the other restrictions contained hereinCompany).
Appears in 2 contracts
Sources: Nonqualified Stock Option Agreement (Transfirst Holdings Corp.), Nonqualified Stock Option Agreement (Transfirst Holdings Corp.)
Competitive Activity. (i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant date hereof and ending on the later of (x) the date that is 12 months after the Termination Date date the Participant’s employment with the Company and its Subsidiaries is terminated or (y) the maximum number of years of base salary the Participant is entitled to receive as severance under any agreement with, or plan or policy of the Company or an Affiliate (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below)person or entity, directly or indirectly, indirectly violates any of the following prohibitions:
(IA) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any person, firm, part-nership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”), directly or indirectly, not solicit or assist in soliciting in competition with the Company or any of its Subsidiaries, a Competitive Business (as defined below) the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one one-year period preceding the Termination DateParticipant’s termination of employment;
(2) with whom employees directly reporting to the Participant (or the Participant’s direct reports) have had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year immediately preceding the Termination DateParticipant’s termination of employment; or
(3) for whom the Participant had direct or indirect responsibility during the one year immediately preceding the Termination DateParticipant’s termination of employment.
(IIB) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that is engaged in, or has plans to engage in, at any time during the Restricted Period, any activity that competes with in the business of manufacturing and marketing food products that directly compete with the core brands of the Company or any of its Subsidiaries, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitamin/mineral supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries (including, without limitation, any other business which the Company or any of its Subsidiaries have plans to engage in as of the Termination Date (and for such purpose, a “core brand” shall be any brand generating annual revenues in an amount equal to at least 5% of the Company’s annual revenues, in the fiscal year preceding the fiscal year of such Termination Date) in any geographical area that is within 100 miles from any geographical area where the Company or any of its Subsidiaries conduct business Affiliates manufactures and markets its products or services (a “Competitive Business”);
(2) enter the employ of, or render any services to, any Person (or any division or controlled or controlling Affiliate affiliate of any Person) who or which engages in a Competitive Business;
(3) 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; or
(4) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the Date date of Grantthis Agreement) between the Company or any of its Subsidiaries Affiliates and customers, clients, suppliers, partners, members or investors of the Company or any of its Subsidiaries. Affiliates.
(C) Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries a Competitive Business which are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which controls, such Person person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person.
(IIID) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries Affiliates to leave the employment of the Company or any of its SubsidiariesAffiliates; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries Affiliates as of the Termination Date date of the Participant’s termination of employment with the Company or who left the employment of the Company or any of its Subsidiaries Affiliates coincident with, or within six 120 days (6one year in the case of any such employee who reported directly to the Participant immediately preceding the Participant’s termination of employment (or the Participant’s direct reports)) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by termination of the Company or any of its Subsidiaries for at least six (6) monthsParticipant’s employment with the Company.
(IV3) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries Affiliates any consultant then under contract with the Company or any its Affiliates, is such action would result in the Company being disadvantaged. Any solicitation or hiring, that the Participant is not personally involved in, of its Subsidiaries.an employee or former employee of the Company through general advertising shall not, of itself, be a breach of this Section 5(a)(i)(D)
(ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 5 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 the Participant, 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
(iii) The period of time during which the provisions of this Section 5 shall be in effect shall be extended by the length of time during which the Participant is in breach of the terms hereof as determined by any court of competent jurisdiction on the Company’s application for injunctive relief.
Appears in 2 contracts
Sources: Nonqualified Stock Option Agreement (Pinnacle Foods Inc.), Nonqualified Stock Option Agreement (Pinnacle Foods Inc.)
Competitive Activity. To the extent a Participant (i) lives in a jurisdiction where restrictive covenants are void as against public policy or (ii) has a business title below the level of “director” and receives base compensation of less than $100,000 (or its local currency equivalent) per year, Section 10(b) of this Agreement shall be considered deleted from and therefore not part of this Agreement.
i. The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant and ending on the date that is 12 months after the Termination Date (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below), directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any individual, person, firm, part-nershippartnership, 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 or any of its SubsidiariesSubsidiaries or Affiliates, the business of any client or prospective client:
(1) . with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year period preceding the Termination Date;
(2) . with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year immediately period preceding the Termination Date; or
(3) . for whom the Participant had direct or indirect responsibility during the one one-year immediately period preceding the Termination Date.
(II) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) . engage in any business that competes with the business of the Company or any of its SubsidiariesSubsidiaries or Affiliates, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitaminvitamins/mineral supplements minerals/supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product product, or service of the type developed, manufactured manufactured, or sold by the Company or any of its Subsidiaries or Affiliates (including, without limitation, any other business which that the Company or any of its Subsidiaries or Affiliates have plans to engage in as of the Termination Date) in any geographical area where the Company or any of its Subsidiaries conduct or Affiliates conducts business (a “Competitive Business”);
(2) . 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;
(3) . 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 trustee, or consultant; or
(4) . interfere with, or attempt to interfere with, any business relationships relationship (whether formed before, on on, or after the Date of Grant) between the Company or any of its Subsidiaries or Affiliates and customersany customer, clientsclient, supplierssupplier, or investors investor of the Company or any of its SubsidiariesSubsidiaries or Affiliates. Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries which Competitive Business that are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which that controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person. Any such qualifying ownership shall not be deemed to be engaging in Competitive Activity or a Restrictive Covenant Violation for purposes of this Agreement.
(III) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) . solicit or encourage any employee of the Company or any of its Subsidiaries or Affiliates to leave the employment of the Company or any of its Subsidiariessuch Employment; or
(2) . hire any such employee who was employed by the Company or any of its Subsidiaries or Affiliates as of the Termination Date or who left the such employment of the Company or any of its Subsidiaries coincident with, or within six (6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries or Affiliates for at least six (6) months.
(IV) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries or Affiliates any consultant then under contract with the Company or any of its SubsidiariesSubsidiaries or Affiliates.
(ii) . It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 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 the Participant, 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 hereinin this Section 10(b).
Appears in 1 contract
Competitive Activity. (i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant and ending on the date that is the later of (x) 12 months after the Termination Date and (y) the Regular Vesting Date (as defined on Exhibit A) (in either case, the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below)Person, directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any person, firm, part-nership, 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 or any of its SubsidiariesSubsidiaries or Affiliates, the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year period preceding the later of the Termination DateDate and the end of the provision of services pursuant to any Consulting Agreement;
(2) with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year immediately period preceding the later of the Termination DateDate and the end of the provision of services pursuant to any Consulting Agreement; or
(3) for whom the Participant had direct or indirect responsibility during the one one-year immediately period preceding the later of the Termination DateDate and the end of the provision of services pursuant to any Consulting Agreement.
(II) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that competes with the business of the Company or any of its SubsidiariesSubsidiaries or Affiliates, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitaminvitamins/mineral minerals/supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product product, or service of the type developed, manufactured manufactured, or sold by the Company or any of its Subsidiaries or Affiliates (including, without limitation, any other business which that the Company or any of its Subsidiaries or Affiliates have plans to engage in as of the Termination Date) in any geographical area where the Company or any of its Subsidiaries conduct or Affiliates conducts business (a “Competitive Business”);
(2) 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;
(3) 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 trustee, or consultant; or
(4) interfere with, or attempt to interfere with, any business relationships relationship (whether formed before, on on, or after the Date of Grant) between the Company or any of its Subsidiaries or Affiliates and customersany customer, clientsclient, supplierssupplier, or investors investor of the Company or any of its SubsidiariesSubsidiaries or Affiliates. Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries which Competitive Business that are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which that controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person. Any such qualifying ownership shall not be deemed to be engaging in Competitive Activity or a Restrictive Covenant Violation for purposes of this Agreement.
(III) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries or Affiliates to leave the employment of the Company or any of its Subsidiariessuch Employment; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries or Affiliates as of the Termination Date or who left the such employment of the Company or any of its Subsidiaries coincident with, or within six (6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries or Affiliates for at least six (6) months.
(IV) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries or Affiliates any consultant then under contract with the Company or any of its SubsidiariesSubsidiaries or Affiliates.
(iii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 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 the Participant, 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 hereinin this Section 10(b).
(ii) To the extent a Participant (i) lives in a jurisdiction where restrictive covenants are void as against public policy or (ii) has a business title below the level of “director” and receives base compensation of less than $100,000 (or its local currency equivalent) per year, this Section 10(b) of this Agreement shall be considered deleted from and therefore not part of this Agreement.
Appears in 1 contract
Competitive Activity. (i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant date hereof and ending on the later of (x) the date that is 12 months after the Termination Date date the Participant’s employment with the Company and its Subsidiaries is terminated or (y) the maximum number of years of base salary the Participant is entitled to receive as severance under any agreement with, or plan or policy of the Company or an Affiliate (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below)person or entity, directly or indirectly, indirectly violates any of the following prohibitions:
(IA) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any person, firm, part-nership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”), directly or indirectly, not solicit or assist in soliciting in competition with the Company or any of its Subsidiaries, a Competitive Business (as defined below) the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one one-year period preceding the Termination DateParticipant’s termination of employment;
(2) with whom employees directly reporting to the Participant (or the Participant’s direct reports) have had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year immediately preceding the Termination DateParticipant’s termination of employment; or
(3) for whom the Participant had direct or indirect responsibility during the one year immediately preceding the Termination DateParticipant’s termination of employment.
(IIB) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that is engaged in, or has plans to engage in, at any time during the Restricted Period, any activity that competes with in the business of manufacturing and marketing food products that directly compete with the core brands of the Company or any of its Subsidiaries, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitamin/mineral supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries (including, without limitation, any other business which the Company or any of its Subsidiaries have plans to engage in as of the Termination Date (and for such purpose, a “core brand” shall be any brand generating annual revenues in an amount equal to at least 5% of the Company’s annual revenues, in the fiscal year preceding the fiscal year of such Termination Date) in any geographical area that is within 100 miles from any geographical area where the Company or any of its Subsidiaries conduct business Affiliates manufactures and markets its products or services (a “Competitive Business”);
(2) enter the employ of, or render any services to, any Person (or any division or controlled or controlling Affiliate affiliate of any Person) who or which engages in a Competitive Business;
(3) 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; or
(4) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the Date date of Grantthis Agreement) between the Company or any of its Subsidiaries Affiliates and customers, clients, suppliers, partners, members or investors of the Company or any of its Subsidiaries. Affiliates.
(C) Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries a Competitive Business which are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which controls, such Person person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person.
(IIID) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries Affiliates to leave the employment of the Company or any of its SubsidiariesAffiliates; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries Affiliates as of the Termination Date date of the Participant’s termination of employment with the Company or who left the employment of the Company or any of its Subsidiaries Affiliates coincident with, or within six 120 days (6one year in the case of any such employee who reported directly to the Participant immediately preceding the Participant’s termination of employment (or the Participant’s direct reports)) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by termination of the Company or any of its Subsidiaries for at least six (6) monthsParticipant’s employment with the Company.
(IV3) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries Affiliates any consultant then under contract with the Company or any its Affiliates, is such action would result in the Company being disadvantaged. Any solicitation or hiring, that the Participant is not personally involved in, of its Subsidiaries.an employee or former employee of the Company through general advertising shall not, of itself, be a breach of this Section 5(a)(i)(D)
(iii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 5 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 the Participant, 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
(iii) The period of time during which the provisions of this Section 5 shall be in effect shall be extended by the length of time during which the Participant is in breach of the terms hereof as determined by any court of competent jurisdiction on the Company’s application for injunctive relief.
Appears in 1 contract
Sources: Nonqualified Stock Option Agreement (Pinnacle Foods Inc.)
Competitive Activity. (i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant and ending (A) in the event that Participant has incurred a Termination pursuant to Section 6(c) of this Agreement, on the date that is the later of (y) 12 months after the Termination Date and (z) the Regular Vesting Date (as defined on Exhibit A) or (B) in all other cases, 12 months after the Termination Date (in either case, the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below)Person, directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any person, firm, part-nership, 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 or any of its SubsidiariesSubsidiaries or Affiliates, the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year period preceding the Termination Date;
(2) with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year immediately period preceding the Termination Date; or
(3) for whom the Participant had direct or indirect responsibility during the one one-year immediately period preceding the Termination Date.
(II) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that competes with the business of the Company or any of its SubsidiariesSubsidiaries or Affiliates, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitaminvitamins/mineral minerals/supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries or Affiliates (including, without limitation, any other business which that the Company or any of its Subsidiaries or Affiliates have plans to engage in as of the Termination Date) in any geographical area where the Company or any of its Subsidiaries conduct or Affiliates conducts business (a “Competitive Business”);
(2) enter the employ of, or render any services service to, any Person (or any division or controlled or controlling Affiliate of any Person) who or which engages in a Competitive Business;
(3) 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; or
(4) interfere with, or attempt to interfere with, any business relationships relationship (whether formed before, on or after the Date of Grant) between the Company or any of its Subsidiaries or Affiliates and customersany customer, clientsclient, supplierssupplier, or investors investor of the Company or any of its SubsidiariesSubsidiaries or Affiliates. Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries which Competitive Business that are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which that controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person. Any such qualifying ownership shall not be deemed to be engaging in Competitive Activity or a Restrictive Covenant Violation for purposes of this Agreement.
(III) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries or Affiliates to leave the employment of the Company or any of its Subsidiariessuch Employment; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries or Affiliates as of the Termination Date or who left the such employment of the Company or any of its Subsidiaries coincident with, or within six (6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries or Affiliates for at least six (6) months.
(IV) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries or Affiliates any consultant then under contract with the Company or any of its SubsidiariesSubsidiaries or Affiliates.
(ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 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 the Participant, 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 hereinin this Section 10(b).
(iii) To the extent a Participant (i) lives in a jurisdiction where restrictive covenants are void as against public policy or (ii) has a business title below the level of “director” and receives base compensation of less than $100,000 (or its local currency equivalent) per year, this Section 10(b) shall be considered deleted from and therefore not part of this Agreement.
Appears in 1 contract
Competitive Activity. (i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant date hereof and ending on the date that is 12 months after the Termination Date date the Participant’s employment with the Company and its Subsidiaries is terminated (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below)person or entity, directly or indirectly, indirectly violates any of the following prohibitions:
(IA) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any person, firm, part-nership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”), directly or indirectly, not solicit or assist in soliciting in competition with the Company or any of its Subsidiaries, a Competitive Business (as defined below) the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one one-year period preceding the Termination DateParticipant’s termination of employment;
(2) with whom employees directly reporting to the Participant (or the Participant’s direct reports) have had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year immediately preceding the Termination DateParticipant’s termination of employment; or
(3) for whom the Participant had direct or indirect responsibility during the one year immediately preceding the Termination DateParticipant’s termination of employment.
(IIB) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that is engaged in, or has plans to engage in, at any time during the Restricted Period, any activity that competes with in the business of manufacturing and marketing food products that directly compete with the core brands of the Company or any of its Subsidiaries, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitamin/mineral supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries (including, without limitation, any other business which the Company or any of its Subsidiaries have plans to engage in as of the Termination Date (and for such purpose, a “core brand” shall be any brand generating annual revenues in an amount equal to at least 10% of the Company’s annual revenues, in the fiscal year preceding the fiscal year of such Termination Date) in any geographical area that is within 100 miles from the Participant’s of any geographical area where the Company or any of its Subsidiaries conduct business Affiliates manufactures and markets its products or services (a “Competitive Business”);
(2) enter the employ of, or render any services to, any Person (or any division or controlled or controlling Affiliate affiliate of any Person) who or which engages in a Competitive Business;
(3) 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; or
(4) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the Date date of Grantthis Agreement) between the Company or any of its Subsidiaries Affiliates and customers, clients, suppliers, partners, members or investors of the Company or any of its Subsidiaries. Affiliates.
(C) Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries a Competitive Business which are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which controls, such Person person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person.
(IIID) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries Affiliates to leave the employment of the Company or any of its SubsidiariesAffiliates; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries Affiliates as of the Termination Date date of the Participant’s termination of employment with the Company or who left the employment of the Company or any of its Subsidiaries Affiliates coincident with, or within six 120 days (6one year in the case of any such employee who reported directly to the Participant immediately preceding the Participant’s termination of employment (or the Participant’s direct reports)) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by termination of the Company or any of its Subsidiaries for at least six (6) monthsParticipant’s employment with the Company.
(IVE) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries Affiliates any consultant then under contract with the Company or any its Affiliates, is such action would result in the Company being disadvantaged. Any solicitation or hiring, that the Participant is not personally involved in, of its Subsidiariesan employee or former employee of the Company through general advertising shall not, of itself, be a breach of this Section 7(a)(i)(E).
(ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 7 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 the Participant, 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
(iii) The period of time during which the provisions of this Section 7 shall be in effect shall be extended by the length of time during which the Participant is in breach of the terms hereof as determined by any court of competent jurisdiction on the Company’s application for injunctive relief.
Appears in 1 contract
Sources: Nonqualified Stock Option Agreement (Pinnacle Foods Finance LLC)
Competitive Activity. To the extent a Participant (i) lives in a jurisdiction where restrictive covenants are void as against public policy or (ii) has a business title below the level of “director” and receives base compensation of less than $100,000 (or its local currency equivalent) per year, Section 10(b) of this Agreement shall be considered deleted from and therefore not part of this Agreement.
(i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant and ending on the date that is 12 months after the Termination Date (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below), directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any individual, person, firm, part-nershippartnership, 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 or any of its SubsidiariesSubsidiaries or Affiliates, the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year period preceding the Termination Date;
(2) with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year immediately period preceding the Termination Date; or
(3) for whom the Participant had direct or indirect responsibility during the one one-year immediately period preceding the Termination Date.
(II) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that competes with the business of the Company or any of its SubsidiariesSubsidiaries or Affiliates, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitaminvitamins/mineral supplements minerals/supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries or Affiliates (including, without limitation, any other business which that the Company or any of its Subsidiaries or Affiliates have plans to engage in as of the Termination Date) in any geographical area where the Company or any of its Subsidiaries conduct or Affiliates conducts business (a “Competitive Business”);
(2) enter the employ of, or render any services service to, any Person (or any division or controlled or controlling Affiliate of any Person) who or which engages in a Competitive Business;
(3) 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; or
(4) interfere with, or attempt to interfere with, any business relationships relationship (whether formed before, on or after the Date of Grant) between the Company or any of its Subsidiaries or Affiliates and customersany customer, clientsclient, suppliers, supplier or investors investor of the Company or any of its SubsidiariesSubsidiaries or Affiliates. Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries which Competitive Business that are publicly traded on a national or regional stock exchange or on the over-the-the- counter market if the Participant (i) is not a controlling person of, or a member of a group which that controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person. Any such qualifying ownership shall not be deemed to be engaging in Competitive Activity or a Restrictive Covenant Violation for purposes of this Agreement.
(III) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries or Affiliates to leave the employment of the Company or any of its Subsidiariessuch Employment; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries or Affiliates as of the Termination Date or who left the such employment of the Company or any of its Subsidiaries coincident with, or within six (6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries or Affiliates for at least six (6) months.
(IV) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries or Affiliates any consultant then under contract with the Company or any of its SubsidiariesSubsidiaries or Affiliates.
(ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 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 the Participant, 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 hereinin this Section 10(b).
Appears in 1 contract
Competitive Activity. (i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant date hereof and ending on the later of (x) the date that is 12 months after the Termination Date date the Participant’s employment with the Company and its Subsidiaries is terminated or (y) the maximum number of years of base salary the Participant is entitled to receive as severance under any agreement with, or plan or policy of the Company or an Affiliate (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below)person or entity, directly or indirectly, indirectly violates any of the following prohibitions:
(IA) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any person, firm, part-nership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”), directly or indirectly, not solicit or assist in soliciting in competition with the Company or any of its Subsidiaries, a Competitive Business (as defined below) the business of any client or prospective client:: 075529-0003-Active.14326070.3
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one one-year period preceding the Termination DateParticipant’s termination of employment;
(2) with whom employees directly reporting to the Participant (or the Participant’s direct reports) have had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year immediately preceding the Termination DateParticipant’s termination of employment; or
(3) for whom the Participant had direct or indirect responsibility during the one year immediately preceding the Termination DateParticipant’s termination of employment.
(IIB) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that is engaged in, or has plans to engage in, at any time during the Restricted Period, any activity that competes with in the business of manufacturing and marketing food products that directly compete with the core brands of the Company or any of its Subsidiaries, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitamin/mineral supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries (including, without limitation, any other business which the Company or any of its Subsidiaries have plans to engage in as of the Termination Date (and for such purpose, a “core brand” shall be any brand generating annual revenues in an amount equal to at least 5% of the Company’s annual revenues, in the fiscal year preceding the fiscal year of such Termination Date) in any geographical area that is within 100 miles from any geographical area where the Company or any of its Subsidiaries conduct business Affiliates manufactures and markets its products or services (a “Competitive Business”);
(2) enter the employ of, or render any services to, any Person (or any division or controlled or controlling Affiliate affiliate of any Person) who or which engages in a Competitive Business;
(3) 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; or
(4) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the Date date of Grantthis Agreement) between the Company or any of its Subsidiaries Affiliates and customers, clients, suppliers, partners, members or investors of the Company or any of its SubsidiariesAffiliates. 075529-0003-Active.14326070.3
(C) Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries a Competitive Business which are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which controls, such Person person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person.
(IIID) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries Affiliates to leave the employment of the Company or any of its SubsidiariesAffiliates; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries Affiliates as of the Termination Date date of the Participant’s termination of employment with the Company or who left the employment of the Company or any of its Subsidiaries Affiliates coincident with, or within six 120 days (6one year in the case of any such employee who reported directly to the Participant immediately preceding the Participant’s termination of employment (or the Participant’s direct reports)) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by termination of the Company or any of its Subsidiaries for at least six (6) monthsParticipant’s employment with the Company.
(IV3) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries Affiliates any consultant then under contract with the Company or any its Affiliates, is such action would result in the Company being disadvantaged. Any solicitation or hiring, that the Participant is not personally involved in, of its Subsidiaries.an employee or former employee of the Company through general advertising shall not, of itself, be a breach of this Section 5(a)(i)(D)
(ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 5 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 the Participant, 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 075529-0003-Active.14326070.3 as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein
(iii) The period of time during which the provisions of this Section 5 shall be in effect shall be extended by the length of time during which the Participant is in breach of the terms hereof as determined by any court of competent jurisdiction on the Company’s application for injunctive relief.
Appears in 1 contract
Sources: Nonqualified Stock Option Agreement (Pinnacle Foods Inc.)
Competitive Activity. (i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant date hereof and ending on the later of (x) the date that is 12 months after the Termination Date date the Participant’s employment with the Company and its Subsidiaries is terminated or (y) the maximum number of years of base salary the Participant is entitled to receive as severance under any agreement with, or plan or policy of the Company or an Affiliate (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below)person or entity, directly or indirectly, indirectly violates any of the following prohibitions:
(IA) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any person, firm, part-nership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”), directly or indirectly, not solicit or assist in soliciting in competition with the Company or any of its Subsidiaries, a Competitive Business (as defined below) the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one one-year period preceding the Termination DateParticipant’s termination of employment;
(2) with whom employees directly reporting to the Participant (or the Participant’s direct reports) have had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year immediately preceding the Termination DateParticipant’s termination of employment; or
(3) for whom the Participant had direct or indirect responsibility during the one year immediately preceding the Termination DateParticipant’s termination of employment.
(IIB) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that is engaged in, or has plans to engage in, at any time during the Restricted Period, any activity that competes with in the business of manufacturing and marketing food products that directly compete with the core brands of the Company or any of its Subsidiaries, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitamin/mineral supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries (including, without limitation, any other business which the Company or any of its Subsidiaries have plans to engage in as of the Termination Date (and for such purpose, a “core brand” shall be any brand generating annual revenues in an amount equal to at least 5% of the Company’s annual revenues, in the fiscal year preceding the fiscal year of such Termination Date) in any geographical area that is within 100 miles of any geographical area where the Company or any of its Subsidiaries conduct business Affiliates manufactures and markets its products or services (a “Competitive Business”);
(2) enter the employ of, or render any services to, any Person (or any division or controlled or controlling Affiliate affiliate of any Person) who or which engages in a Competitive Business;
(3) 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; or
(4) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the Date date of Grantthis Agreement) between the Company or any of its Subsidiaries Affiliates and customers, clients, suppliers, partners, members or investors of the Company or any of its SubsidiariesAffiliates. Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries a Competitive Business which are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which controls, such Person person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person.
(IIIC) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries Affiliates to leave the employment of the Company or any of its SubsidiariesAffiliates; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries Affiliates as of the Termination Date date of the Participant’s termination of employment with the Company or who left the employment of the Company or any of its Subsidiaries Affiliates coincident with, or within six 120 days (6one year in the case of any such employee who reported directly to the Participant immediately preceding the Participant’s termination of employment (or the Participant’s direct reports)) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by termination of the Company or any of its Subsidiaries for at least six (6) monthsParticipant’s employment with the Company.
(IVD) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries Affiliates any consultant then under contract with the Company or any its Affiliates, is such action would result in the Company being disadvantaged. Any solicitation or hiring, that the Participant is not personally involved in, of its Subsidiariesan employee or former employee of the Company through general advertising shall not, of itself, be a breach of this Section 2(a)(i)(D).
(ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b2(a) 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 the Participant, 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
(iii) The period of time during which the provisions of this Section 2(a) shall be in effect shall be extended by the length of time during which the Participant is in breach of the terms hereof as determined by any court of competent jurisdiction on the Company’s application for injunctive relief.
Appears in 1 contract
Competitive Activity. (iTo the extent a Participant lives in a jurisdiction where restrictive covenants are void as against public policy, Section 10(b) of this Agreement shall be considered deleted from and therefore not part of this Agreement.
i. The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant and ending on the date that is 12 months after the Termination Date (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below), directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any individual, person, firm, part-nershippartnership, 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 or any of its SubsidiariesSubsidiaries or Affiliates, the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year period preceding the Termination Date;
(2) with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year immediately period preceding the Termination Date; or
(3) for whom the Participant had direct or indirect responsibility during the one one-year immediately period preceding the Termination Date.
(II) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that competes with the business of the Company or any of its SubsidiariesSubsidiaries or Affiliates, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitaminvitamins/mineral minerals/supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries or Affiliates (including, without limitation, any other business which that the Company or any of its Subsidiaries or Affiliates have plans to engage in as of the Termination Date) in any geographical area where the Company or any of its Subsidiaries conduct or Affiliates conducts business (a “Competitive Business”);
(2) 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;
(3) 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; or
(4) interfere with, or attempt to interfere with, any business relationships relationship (whether formed before, on or after the Date of Grant) between the Company or any of its Subsidiaries or Affiliates and customersany customer, clientsclient, supplierssupplier, or investors investor of the Company or any of its SubsidiariesSubsidiaries or Affiliates. Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries which Competitive Business that are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which that controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person. Any such qualifying ownership shall not be deemed to be engaging in Competitive Activity or a Restrictive Covenant Violation for purposes of this Agreement.
(III) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries or Affiliates to leave the employment of the Company or any of its Subsidiariessuch Employment; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries or Affiliates as of the Termination Date or who left the employment of the Company or any of its Subsidiaries such Employment coincident with, or within six (6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries or Affiliates for at least six (6) months.
(IV) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries or Affiliates any consultant then under contract with the Company or any of its SubsidiariesSubsidiaries or Affiliates.
(ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 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 the Participant, 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.
Appears in 1 contract
Competitive Activity. (i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during During the period commencing on the Date of Grant date hereof and ending on the later of (x) the date that is 12 months after the Termination Date date the Participant’s employment with the Company and its Subsidiaries is terminated or (y) the last day of the period equal to the maximum number of years of base salary the Participant is entitled to receive as severance under any agreement with, or plan or policy of the Company or an Affiliate (the “Restricted Activity Period”), the ParticipantParticipant agrees not to violate or cause to be violated, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below)person or entity, directly or indirectly, violates any of the following prohibitions:
(Iii) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any person, firm, part-nership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”), directly or indirectly, not solicit or assist in soliciting in competition with the Company or any of its Subsidiaries, a Competitive Business (as defined below) the business of any client or prospective client:
(1) A. with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one one-year period preceding the Termination DateParticipant’s termination of employment;
(2) B. with whom employees directly reporting to the Participant (or the Participant’s direct reports) have had personal contact or dealings on behalf of the 075529-0019-13471-13873967 Company or any of its Subsidiaries during the one year immediately preceding the Termination DateParticipant’s termination of employment; or
(3) C. for whom the Participant had direct or indirect responsibility during the one year immediately preceding the Termination DateParticipant’s termination of employment.
(IIiii) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) A. engage in any business that is engaged in, or has plans to engage in, at any time during the Restricted Period, any activity that competes with in the business of manufacturing and marketing food products that directly compete with the core brands of the Company or any of its Subsidiaries, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitamin/mineral supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries (including, without limitation, any other business which the Company or any of its Subsidiaries have plans to engage in as of the date of Participant’s Termination Date(and for such purpose, a “core brand” shall be any brand generating annual revenues in an amount equal to at least 5% of the Company’s annual revenues, in the fiscal year preceding the fiscal year of such date) in any geographical area that is within 100 miles from any geographical area where the Company or any of its Subsidiaries conduct business Affiliates manufactures and markets its products or services (a “Competitive Business”);
(2) B. enter the employ of, or render any services to, any Person (or any division or controlled or controlling Affiliate affiliate of any Person) who or which engages in a Competitive Business;
(3) C. 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; or
(4) D. interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the Date date of Grantthis Agreement) between the Company or any of its Subsidiaries Affiliates and customers, clients, suppliers, partners, members or investors of the Company or any of its Subsidiaries. Affiliates.
(iv) Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries a Competitive Business which are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which controls, such Person person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person.. 075529-0019-13471-13873967
(IIIv) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) A. solicit or encourage any employee of the Company or any of its Subsidiaries Affiliates to leave the employment of the Company or any of its SubsidiariesAffiliates; or
(2) B. hire any such employee who was employed by the Company or any of its Subsidiaries Affiliates as of the Termination Date date of the Participant’s termination of employment with the Company or who left the employment of the Company or any of its Subsidiaries Affiliates coincident with, or within six 120 days (6one year in the case of any such employee who reported directly to the Participant immediately preceding the Participant’s termination of employment (or the Participant’s direct reports)) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by termination of the Company or any of its Subsidiaries for at least six (6) monthsParticipant’s employment with the Company.
(IVvi) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries Affiliates any consultant then under contract with the Company or any its Affiliates, is such action would result in the Company being disadvantaged. Any solicitation or hiring, that the Participant is not personally involved in, of its Subsidiariesan employee or former employee of the Company through general advertising shall not, of itself, be a breach of this Section 3(b)(v).
(iivii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b3(b) 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 the Participant, 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.
(viii) The period of time during which the provisions of this Section 3(b) shall be in effect shall be extended by the length of time during which the Participant is in breach of the terms hereof as determined by any court of competent jurisdiction on the Company's application for injunctive relief.
Appears in 1 contract
Sources: Restricted Stock Award Agreement (Pinnacle Foods Inc.)
Competitive Activity. (i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant date hereof and ending on the later of (x) the date that is 12 months after the Termination Date date the Participant’s employment with the Company and its Subsidiaries is terminated or (y) the maximum number of years of base salary the Participant is entitled to receive as severance under any agreement with, or plan or policy of the Company or an Affiliate (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below)person or entity, directly or indirectly, indirectly violates any of the following prohibitions:
(IA) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any person, firm, part-nership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”), directly or indirectly, not solicit or assist in soliciting in competition with the Company or any of its Subsidiaries, a Competitive Business (as defined below) the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one one-year period preceding the Termination DateParticipant’s termination of Employment;
(2) with whom employees directly reporting to the Participant (or the Participant’s direct reports) have had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year immediately preceding the Termination DateParticipant’s termination of Employment; or
(3) for whom the Participant had direct or indirect responsibility during the one year immediately preceding the Termination DateParticipant’s termination of Employment.
(IIB) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that is engaged in, or has plans to engage in, at any time during the Restricted Period, any activity that competes with in the business of manufacturing and marketing food products that directly compete with the core brands of the Company or any of its Subsidiaries, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitamin/mineral supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries (including, without limitation, any other business which the Company or any of its Subsidiaries have plans to engage in as of the Termination Date (and for such purpose, a “core brand” shall be any brand generating annual revenues in an amount equal to at least 5% of the Company’s annual revenues, in the fiscal year preceding the fiscal year of such Termination Date) in any geographical area that is within 100 miles from any geographical area where the Company or any of its Subsidiaries conduct business Affiliates manufactures and markets its products or services (a “Competitive Business”);
(2) enter the employ of, or render any services to, any Person (or any division or controlled or controlling Affiliate affiliate of any Person) who or which engages in a Competitive Business;
(3) 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; or
(4) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the Date date of Grantthis Agreement) between the Company or any of its Subsidiaries Affiliates and customers, clients, suppliers, partners, members or investors of the Company or any of its Subsidiaries. Affiliates.
(C) Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries a Competitive Business which are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which controls, such Person person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person.
(IIID) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries Affiliates to leave the employment of the Company or any of its SubsidiariesAffiliates; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries Affiliates as of the Termination Date date of the Participant’s termination of Employment with the Company or who left the employment of the Company or any of its Subsidiaries Affiliates coincident with, or within six 120 days (6one year in the case of any such employee who reported directly to the Participant immediately preceding the Participant’s termination of Employment (or the Participant’s direct reports)) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by termination of the Company or any of its Subsidiaries for at least six (6) monthsParticipant’s Employment with the Company.
(IV3) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries Affiliates any consultant then under contract with the Company or any its Affiliates, is such action would result in the Company being disadvantaged. Any solicitation or hiring, that the Participant is not personally involved in, of its Subsidiaries.an employee or former employee of the Company through general advertising shall not, of itself, be a breach of this Section 7(a)(i)(D)
(iii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 7 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 the Participant, 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
(iii) The period of time during which the provisions of this Section 7 shall be in effect shall be extended by the length of time during which the Participant is in breach of the terms hereof as determined by any court of competent jurisdiction on the Company’s application for injunctive relief.
Appears in 1 contract
Sources: Restricted Stock Unit Agreement (Pinnacle Foods Inc.)
Competitive Activity. To the extent a Participant (i) lives in a jurisdiction where restrictive covenants are void as against public policy or (ii) has a business title below the level of “director” and receives base compensation of less than $100,000 (or its local currency equivalent) per year, Section 10(b) of this Agreement shall be considered deleted from and therefore not part of this Agreement.
(i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant and ending on the date that is 12 months after the Termination Date (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below), directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any individual, person, firm, part-nershippartnership, 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 or any of its SubsidiariesSubsidiaries or Affiliates, the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year period preceding the Termination Date;
(2) with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year immediately period preceding the Termination Date; or
(3) for whom the Participant had direct or indirect responsibility during the one one-year immediately period preceding the Termination Date.
(II) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that competes with the business of the Company or any of its SubsidiariesSubsidiaries or Affiliates, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitaminvitamins/mineral supplements minerals/supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries or Affiliates (including, without limitation, any other business which that the Company or any of its Subsidiaries or Affiliates have plans to engage in as of the Termination Date) in any geographical area where the Company or any of its Subsidiaries conduct or Affiliates conducts business (a “Competitive Business”);
(2) enter the employ of, or render any services service to, any Person (or any division or controlled or controlling Affiliate of any Person) who or which engages in a Competitive Business;
(3) 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; or
(4) interfere with, or attempt to interfere with, any business relationships relationship (whether formed before, on or after the Date of Grant) between the Company or any of its Subsidiaries or Affiliates and customersany customer, clientsclient, supplierssupplier, or investors investor of the Company or any of its SubsidiariesSubsidiaries or Affiliates. Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries which Competitive Business that are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which that controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person. Any such qualifying ownership shall not be deemed to be engaging in Competitive Activity or a Restrictive Covenant Violation for purposes of this Agreement.
(III) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries or Affiliates to leave the employment of the Company or any of its Subsidiariessuch Employment; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries or Affiliates as of the Termination Date or who left the such employment of the Company or any of its Subsidiaries coincident with, or within six (6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries or Affiliates for at least six (6) months.
(IV) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries or Affiliates any consultant then under contract with the Company or any of its SubsidiariesSubsidiaries or Affiliates.
(ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 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 the Participant, 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 hereinin this Section 10(b).
Appears in 1 contract
Competitive Activity. (ia) The Participant shall be deemed to have engaged in “Competitive Activity” if, during During the period commencing on the Closing Date of Grant and ending on the date that is 12 months two (2) years after the Termination Date date Executive’s employment with the Company and its Subsidiaries is terminated by the Company or any of its Subsidiaries for any reason (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below), directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity Period, the Participant Executive will not, whether on the ParticipantExecutive’s own behalf or on behalf of or in conjunction with any person, firm, part-nershippartnership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”), directly or indirectly, solicit or assist in soliciting soliciting, or cause any other Person or entity to solicit or assist in competition with the Company or any of its Subsidiariessoliciting, for a Competitive Business (as defined below), the business of any client or prospective client:
(1i) with whom the Participant Executive had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year period preceding Executive’s termination of employment with the Termination DateCompany or any of its Subsidiaries;
(2ii) with whom employees reporting to the Participant Executive have had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year immediately preceding the Termination DateExecutive’s termination of employment; or
(3iii) for whom the Participant Executive had direct or indirect responsibility during the one year immediately preceding the Termination DateExecutive’s termination of employment.
(IIb) During the Restricted Activity Period, period commencing on the Participant Closing Date and ending on the date that is twelve (12) months after the date Executive’s employment with the Company and its Subsidiaries is terminated by the Company or any of its Subsidiaries for any reason:
(i) Executive will not directly or indirectly:
(1) engage in any business that directly and materially competes with the business of the Company or any of its Subsidiaries, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter businesses in which Catalent and vitamin/mineral supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries was engaged on the date of breach or the date of Executive’s termination of employment, whichever is earlier (including, without limitation, any other business which the Company Catalent or any of its Subsidiaries have has active plans to engage in as of the Termination Date) such date), in any geographical area where the Company Catalent or any of its Subsidiaries conduct conducts business (a “Competitive Business”); provided, however, that, notwithstanding the foregoing, the term Competitive Business shall not include (x) a non-competitive subsidiary, division or affiliate of a company that is engaged in a Competitive Business or (y) a private equity firm other than Blackstone, provided that Executive does not provide advisory services with respect to any portfolio company of such private equity firm which is a Competitive Business;
(2) enter the employ of, or render any advisory or consulting services to, any Person (or any division or controlled or controlling Affiliate of any Person) who or which engages in a Competitive Business; provided, however, that, notwithstanding the foregoing, for purposes of this subsection the term Person shall not include (x) a non-competitive subsidiary, division or affiliate of a company that is engaged in a Competitive Business or (y) a private equity firm other than Blackstone, provided that Executive does not provide advisory services with respect to any portfolio company of such private equity firm which is a Competitive Business;
(3) 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; or
(4) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the Date date of Grantthis Agreement) between the Company or any of its Subsidiaries and customers, clients, suppliers, or investors of the Company or any of its Subsidiaries. Notwithstanding anything to the contrary in this Agreement, the Participant Executive may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries which are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant 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.
(IIIc) During the Restricted Activity Period, the Participant Executive will not, whether on the ParticipantExecutive’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1i) solicit or or, other in the ordinary course of performing Executive’s duties for the Companies, encourage any employee of the Company BHP PTS Holdings, L.L.C. (“BHP”) or any of its Subsidiaries to leave the employment of the Company BHP or any of its Subsidiaries; or
(2ii) hire any such employee who was employed by the Company BHP or any of its Subsidiaries as of the Termination Date date of Executive’s termination of employment with the Company or who left the employment of the Company BHP or any of its Subsidiaries coincident with, or within six twelve (612) months prior to or afterto, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by termination of Executive’s employment with the Company or any of its Subsidiaries for at least six (6) monthsSubsidiaries.
(IVd) During the Restricted Activity Period, the Participant Executive will not, directly or indirectly, solicit or encourage to cease to work with the Company BHP or any of its Subsidiaries any consultant then under contract with the Company BHP or any of its Subsidiaries.
(iiA) Notwithstanding anything herein to the contrary, upon a Change of Control (as defined in the Employment Agreement), the definition of BHP, the Company, Catalent, their respective Subsidiaries and Affiliates and their respective employees, independent contractors, clients and prospective clients for purposes of this Section 6.1 shall refer only to BHP, the Company, Catalent, their respective Subsidiaries and Affiliates (and the businesses in which they were engaged or had active plans to engage in), their respective employees, independent contractors, clients and prospective clients, in each case, as of the date immediately prior to such Change of Control.
(e) It is expressly understood and agreed that although the Participant Executive and the Company consider the restrictions contained in this Section 10(b) 6.1 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 the ParticipantExecutive, 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.
Appears in 1 contract
Sources: Employment Agreement (Catalent Pharma Solutions, Inc.)
Competitive Activity. (i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during During the period commencing on the Date of Grant date hereof and ending on the later of (x) the date that is 12 months after the Termination Date date the Participant’s employment with the Company and its Subsidiaries is terminated or (y) the last day of the period equal to the maximum number of years of base salary the Participant is entitled to receive as severance under any agreement with, or plan or policy of the Company or an Affiliate (the “Restricted Activity Period”), the ParticipantParticipant agrees not to violate or cause to be violated, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below)person or entity, directly or indirectly, violates any of the following prohibitions:
(Iii) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any person, firm, part-nership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”), directly or indirectly, not solicit or assist in soliciting in competition with the Company or any of its Subsidiaries, a Competitive Business (as defined below) the business of any client or prospective client:
(1) A. with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one one-year period preceding the Termination DateParticipant’s termination of employment;
(2) B. with whom employees directly reporting to the Participant (or the Participant’s direct reports) have had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year immediately preceding the Termination DateParticipant’s termination of employment; or
(3) C. for whom the Participant had direct or indirect responsibility during the one year immediately preceding the Termination DateParticipant’s termination of employment.
(IIiii) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) A. engage in any business that is engaged in, or has plans to engage in, at any time during the Restricted Period, any activity that competes with in the business of manufacturing and marketing food products that directly compete with the core brands of the Company or any of its Subsidiaries, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitamin/mineral supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries (including, without limitation, any other business which the Company or any of its Subsidiaries have plans to engage in as of the date of Participant’s Termination Date(and for such purpose, a “core brand” shall be any brand generating annual 075529-0003-13471-Active.14326065.3 revenues in an amount equal to at least 5% of the Company’s annual revenues, in the fiscal year preceding the fiscal year of such date) in any geographical area that is within 100 miles from any geographical area where the Company or any of its Subsidiaries conduct business Affiliates manufactures and markets its products or services (a “Competitive Business”);
(2) B. enter the employ of, or render any services to, any Person (or any division or controlled or controlling Affiliate affiliate of any Person) who or which engages in a Competitive Business;
(3) C. 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; or
(4) D. interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the Date date of Grantthis Agreement) between the Company or any of its Subsidiaries Affiliates and customers, clients, suppliers, partners, members or investors of the Company or any of its Subsidiaries. Affiliates.
(iv) Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries a Competitive Business which are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which controls, such Person person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person.
(IIIv) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) A. solicit or encourage any employee of the Company or any of its Subsidiaries Affiliates to leave the employment of the Company or any of its SubsidiariesAffiliates; or
(2) B. hire any such employee who was employed by the Company or any of its Subsidiaries Affiliates as of the Termination Date date of the Participant’s termination of employment with the Company or who left the employment of the Company or any of its Subsidiaries Affiliates coincident with, or within six 120 days (6one year in the case of any such employee who reported directly to the Participant immediately preceding the Participant’s termination of employment (or the Participant’s direct reports)) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by termination of the Company or any of its Subsidiaries for at least six (6) months.Participant’s employment with the Company. 075529-0003-13471-Active.14326065.3
(IVvi) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries Affiliates any consultant then under contract with the Company or any its Affiliates, is such action would result in the Company being disadvantaged. Any solicitation or hiring, that the Participant is not personally involved in, of its Subsidiariesan employee or former employee of the Company through general advertising shall not, of itself, be a breach of this Section 3(b)(v).
(iivii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b3(b) 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 the Participant, 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.
(viii) The period of time during which the provisions of this Section 3(b) shall be in effect shall be extended by the length of time during which the Participant is in breach of the terms hereof as determined by any court of competent jurisdiction on the Company's application for injunctive relief.
Appears in 1 contract
Sources: Restricted Stock Award Agreement (Pinnacle Foods Inc.)
Competitive Activity. To the extent a Participant (i) lives in a jurisdiction where restrictive covenants are void as against public policy or (ii) has a business title below the level of “director” and receives base compensation of less than $100,000 (or its local currency equivalent) per year, Section 10(b) of this Agreement shall be considered deleted from and therefore not part of this Agreement.
i. The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant and ending on the date that is 12 months after the Termination Date (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below), directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any individual, person, firm, part-nershippartnership, 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 or any of its SubsidiariesSubsidiaries or Affiliates, the business of any client or prospective client:
(1) . with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year period preceding the Termination Date;
(2) . with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year immediately period preceding the Termination Date; or
(3) . for whom the Participant had direct or indirect responsibility during the one one-year immediately period preceding the Termination Date.
(II) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) . engage in any business that competes with the business of the Company or any of its SubsidiariesSubsidiaries or Affiliates, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitaminvitamins/mineral supplements minerals/supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries or Affiliates (including, without limitation, any other business which that the Company or any of its Subsidiaries or Affiliates have plans to engage in as of the Termination Date) in any geographical area where the Company or any of its Subsidiaries conduct or Affiliates conducts business (a “Competitive Business”);
(2) . enter the employ of, or render any services service to, any Person (or any division or controlled or controlling Affiliate of any Person) who or which engages in a Competitive Business;
(3) . 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; or
(4) . interfere with, or attempt to interfere with, any business relationships relationship (whether formed before, on or after the Date of Grant) between the Company or any of its Subsidiaries or Affiliates and customersany customer, clientsclient, supplierssupplier, or investors investor of the Company or any of its SubsidiariesSubsidiaries or Affiliates. Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries which Competitive Business that are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which that controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person. Any such qualifying ownership shall not be deemed to be engaging in Competitive Activity or a Restrictive Covenant Violation for purposes of this Agreement.
(III) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) . solicit or encourage any employee of the Company or any of its Subsidiaries or Affiliates to leave the employment of the Company or any of its Subsidiariessuch Employment; or
(2) . hire any such employee who was employed by the Company or any of its Subsidiaries or Affiliates as of the Termination Date or who left the such employment of the Company or any of its Subsidiaries coincident with, or within six (6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries or Affiliates for at least six (6) months.
(IV) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries or Affiliates any consultant then under contract with the Company or any of its SubsidiariesSubsidiaries or Affiliates.
(ii) . It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 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 the Participant, 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 hereinin this Section 10(b).
Appears in 1 contract
Competitive Activity. To the extent a Participant lives in a jurisdiction where restrictive covenants are void as against public policy, Section 10(b) of this Agreement shall be considered deleted from and therefore not part of this Agreement.
(i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant and ending on the date that is 12 months after the Termination Date (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below), directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any individual, person, firm, part-nershippartnership, 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 or any of its SubsidiariesSubsidiaries or Affiliates, the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year period preceding the Termination Date;
(2) with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year immediately period preceding the Termination Date; or
(3) for whom the Participant had direct or indirect responsibility during the one one-year immediately period preceding the Termination Date.
(II) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that competes with the business of the Company or any of its SubsidiariesSubsidiaries or Affiliates, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitaminvitamins/mineral minerals/supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries or Affiliates (including, without limitation, any other business which that the Company or any of its Subsidiaries or Affiliates have plans to engage in as of the Termination Date) in any geographical area where the Company or any of its Subsidiaries conduct or Affiliates conducts business (a “Competitive Business”);
(2) 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;
(3) 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; or
(4) interfere with, or attempt to interfere with, any business relationships relationship (whether formed before, on or after the Date of Grant) between the Company or any of its Subsidiaries or Affiliates and customersany customer, clientsclient, supplierssupplier, or investors investor of the Company or any of its SubsidiariesSubsidiaries or Affiliates. Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries which Competitive Business that are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which that controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person. Any such qualifying ownership shall not be deemed to be engaging in Competitive Activity or a Restrictive Covenant Violation for purposes of this Agreement.
(III) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries or Affiliates to leave the employment of the Company or any of its Subsidiariessuch Employment; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries or Affiliates as of the Termination Date or who left the employment of the Company or any of its Subsidiaries such Employment coincident with, or within six (6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries or Affiliates for at least six (6) months.
(IV) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries or Affiliates any consultant then under contract with the Company or any of its SubsidiariesSubsidiaries or Affiliates.
(ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 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 the Participant, 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 hereinin this Section 10(b).
Appears in 1 contract
Competitive Activity. (i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant and ending on the date that is the later of (x) 12 months after the Termination Date and (y) the Vesting Date (in either case, the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below)Person, directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any person, firm, part-nership, 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 or any of its SubsidiariesSubsidiaries or Affiliates, the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year period preceding the later of the Termination DateDate and the end of the provision of services pursuant to any Consulting Agreement;
(2) with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year immediately period preceding the later of the Termination DateDate and the end of the provision of services pursuant to any Consulting Agreement; or
(3) for whom the Participant had direct or indirect responsibility during the one one-year immediately period preceding the later of the Termination DateDate and the end of the provision of services pursuant to any Consulting Agreement.
(II) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that competes with the business of the Company or any of its SubsidiariesSubsidiaries or Affiliates, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitaminvitamins/mineral minerals/supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging packaging, and any other technology, product product, or service of the type developed, manufactured manufactured, or sold by the Company or any of its Subsidiaries or Affiliates (including, without limitation, any other business which that the Company or any of its Subsidiaries or Affiliates have plans to engage in as of the Termination Date) in any geographical area where the Company or any of its Subsidiaries conduct or Affiliates conducts business (a “Competitive Business”);
(2) 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;
(3) 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 trustee, or consultant; or
(4) interfere with, or attempt to interfere with, any business relationships relationship (whether formed before, on on, or after the Date of Grant) between the Company or any of its Subsidiaries or Affiliates and customersany customer, clientsclient, supplierssupplier, or investors investor of the Company or any of its SubsidiariesSubsidiaries or Affiliates. Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries which Competitive Business that are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which that controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person. Any such qualifying ownership shall not be deemed to be engaging in Competitive Activity or a Restrictive Covenant Violation for purposes of this Agreement.
(III) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries or Affiliates to leave the employment of the Company or any of its Subsidiariessuch Employment; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries or Affiliates as of the Termination Date or who left the such employment of the Company or any of its Subsidiaries coincident with, or within six (6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries or Affiliates for at least six (6) months.
(IV) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries or Affiliates any consultant then under contract with the Company or any of its SubsidiariesSubsidiaries or Affiliates.
(iii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 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 the Participant, 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 hereinin this Section 10(b).
(ii) To the extent a Participant (i) lives in a jurisdiction where restrictive covenants are void as against public policy or (ii) has a business title below the level of “director” and receives base compensation of less than $100,000 (or its local currency equivalent) per year, this Section 10(b) of this Agreement shall be considered deleted from and therefore not part of this Agreement.
Appears in 1 contract
Competitive Activity. To the extent a Participant lives in a jurisdiction where restrictive covenants are void as against public policy, this Section 6(b) shall be considered deleted from and therefore not part of this Agreement.
(i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant and ending on the date that is 12 months after the Termination Date (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below), directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any individual, person, firm, part-nership, 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 or any of its SubsidiariesSubsidiaries or Affiliates, the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year period preceding the Termination Date;
; (2) with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year immediately period preceding the Termination Date; or
(3) for whom the Participant had direct or indirect responsibility during the one one-year immediately period preceding the Termination Date.
(II) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that competes with the business of the Company or any of its SubsidiariesSubsidiaries or Affiliates, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitaminvitamins/mineral minerals/supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries or Affiliates (including, without limitation, any other business which that the Company or any of its Subsidiaries or Affiliates have plans to engage in as of the Termination Date) in any geographical area where the Company or any of its Subsidiaries conduct or Affiliates conducts business (a “Competitive Business”);
(2) 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;
(3) 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; or
(4) interfere with, or attempt to interfere with, any business relationships relationship (whether formed before, on or after the Date of Grant) between the Company or any of its Subsidiaries or Affiliates and customersany customer, clientsclient, supplierssupplier, or investors investor of the Company or any of its SubsidiariesSubsidiaries or Affiliates. Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries which Competitive Business that are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which that controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person. Any such qualifying ownership shall not be deemed to be engaging in Competitive Activity or a Restrictive Covenant Violation for purposes of this Agreement.
(III) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries or Affiliates to leave the employment of the Company or any of its Subsidiariessuch Employment; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries or Affiliates as of the Termination Date or who left the employment of the Company or any of its Subsidiaries such Employment coincident with, or within six (6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries or Affiliates for at least six (6) months.
(IV) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries or Affiliates any consultant then under contract with the Company or any of its SubsidiariesSubsidiaries or Affiliates.
(ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b6(b) 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 the Participant, 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 hereinin this Section 6(b).
Appears in 1 contract
Sources: Performance Restricted Stock Agreement (Catalent, Inc.)
Competitive Activity. To the extent a Participant (i) lives in a jurisdiction where restrictive covenants are void as against public policy or (ii) has a business title below the level of “director” and receives base compensation of less than $100,000 (or its local currency equivalent) per year, Section 10(b) of this Agreement shall be considered deleted from and therefore not part of this Agreement.
(i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant and ending on the date that is 12 months after the Termination Date (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below), directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any individual, person, firm, part-nershippartnership, 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 or any of its SubsidiariesSubsidiaries or Affiliates, the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year period preceding the Termination Date;
(2) with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year immediately period preceding the Termination Date; or
(3) for whom the Participant had direct or indirect responsibility during the one one-year immediately period preceding the Termination Date.
(II) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that competes with the business of the Company or any of its SubsidiariesSubsidiaries or Affiliates, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitaminvitamins/mineral supplements minerals/supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product product, or service of the type developed, manufactured manufactured, or sold by the Company or any of its Subsidiaries or Affiliates (including, without limitation, any other business which that the Company or any of its Subsidiaries or Affiliates have plans to engage in as of the Termination Date) in any geographical area where the Company or any of its Subsidiaries conduct or Affiliates conducts business (a “Competitive Business”);
(2) 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;
(3) 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 trustee, or consultant; or
(4) interfere with, or attempt to interfere with, any business relationships relationship (whether formed before, on on, or after the Date of Grant) between the Company or any of its Subsidiaries or Affiliates and customersany customer, clientsclient, supplierssupplier, or investors investor of the Company or any of its SubsidiariesSubsidiaries or Affiliates. Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries which Competitive Business that are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which that controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person. Any such qualifying ownership shall not be deemed to be engaging in Competitive Activity or a Restrictive Covenant Violation for purposes of this Agreement.
(III) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries or Affiliates to leave the employment of the Company or any of its Subsidiariessuch Employment; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries or Affiliates as of the Termination Date or who left the such employment of the Company or any of its Subsidiaries coincident with, or within six (6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries or Affiliates for at least six (6) months.
(IV) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries or Affiliates any consultant then under contract with the Company or any of its SubsidiariesSubsidiaries or Affiliates.
(ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 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 the Participant, 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 hereinin this Section 10(b).
Appears in 1 contract
Competitive Activity. (i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant date hereof and ending on the later of (x) the date that is 12 months after the Termination Date date the Participant’s employment with the Company and its Subsidiaries is terminated or (y) the maximum number of years of base salary the Participant is entitled to receive as severance under any agreement with, or plan or policy of the Company or an Affiliate (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below)person or entity, directly or indirectly, indirectly violates any of the following prohibitions:
(Iii) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any person, firm, part-nership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”), directly or indirectly, not solicit or assist in soliciting in competition with the Company or any of its Subsidiaries, a Competitive Business (as defined below) the business of any client or prospective client:
(1) A. with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one one-year period preceding the Termination DateParticipant’s termination of employment;
(2) B. with whom employees directly reporting to the Participant (or the Participant’s direct reports) have had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year immediately preceding the Termination DateParticipant’s termination of employment; or
(3) C. for whom the Participant had direct or indirect responsibility during the one year immediately preceding the Termination DateParticipant’s termination of employment.
(IIiii) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) A. engage in any business that is engaged in, or has plans to engage in, at any time during the Restricted Period, any activity that competes with in the business of manufacturing and marketing food products that directly compete with the core brands of the Company or any of its Subsidiaries, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitamin/mineral supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries (including, without limitation, any other business which the Company or any of its Subsidiaries have plans to engage in as of the Termination Date (and for such purpose, a “core brand” shall be any brand generating annual revenues in an amount equal to at least 5% of the Company’s annual revenues, in the fiscal year preceding the fiscal year of such Termination Date) in any geographical area that is within 100 miles from any geographical area where the Company or any of its Subsidiaries conduct business Affiliates manufactures and markets its products or services (a “Competitive Business”);
(2) B. enter the employ of, or render any services to, any Person (or any division or controlled or controlling Affiliate affiliate of any Person) who or which engages in a Competitive Business;
(3) C. 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; or
(4) D. interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the Date date of Grantthis Agreement) between the Company or any of its Subsidiaries Affiliates and customers, clients, suppliers, partners, members or investors of the Company or any of its Subsidiaries. Affiliates.
(iv) Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries a Competitive Business which are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (iA) is not a controlling person of, or a member of a group which controls, such Person person and (iiB) does not, directly or indirectly, own 5% or more of any class of securities of such Person.
(IIIv) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) A. solicit or encourage any employee of the Company or any of its Subsidiaries Affiliates to leave the employment of the Company or any of its SubsidiariesAffiliates; or
(2) B. hire any such employee who was employed by the Company or any of its Subsidiaries Affiliates as of the Termination Date date of the Participant’s termination of employment with the Company or who left the employment of the Company or any of its Subsidiaries Affiliates coincident with, or within six 120 days (6one year in the case of any such employee who reported directly to the Participant immediately preceding the Participant’s termination of employment (or the Participant’s direct reports)) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by termination of the Company or any of its Subsidiaries for at least six (6) monthsParticipant’s employment with the Company.
(IVvi) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries Affiliates any consultant then under contract with the Company or any its Affiliates, as such action would result in the Company being disadvantaged. Any solicitation or hiring, that the Participant is not personally involved in, of its Subsidiariesan employee or former employee of the Company through general advertising shall not, of itself, be a breach of this Section 3(b)(vi).
(iivii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b3(b) 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 the Participant, 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.
(viii) The period of time during which the provisions of this Section 3(b) shall be in effect shall be extended by the length of time during which the Participant is in breach of the terms hereof as determined by any court of competent jurisdiction on the Company's application for injunctive relief.
Appears in 1 contract
Sources: Restricted Stock Award Agreement (Pinnacle Foods Inc.)
Competitive Activity. (i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant and ending (A) in the event that Participant has incurred a Termination pursuant to Section 4(c) of this Agreement, on the date that is the later of (y) 12 months after the Termination Date and (z) the vesting date, as provided in the Grant Notice or (B) in all other cases, 12 months after the Termination Date (in either case, the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below)Person, directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any person, firm, part-nership, 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 or any of its SubsidiariesSubsidiaries or Affiliates, the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year period preceding the Termination Date;
(2) with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year immediately period preceding the Termination Date; or
(3) for whom the Participant had direct or indirect responsibility during the one one-year immediately period preceding the Termination Date.
(II) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that competes with the business of the Company or any of its SubsidiariesSubsidiaries or Affiliates, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitaminvitamins/mineral minerals/supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries or Affiliates (including, without limitation, any other business which that the Company or any of its Subsidiaries or Affiliates have plans to engage in as of the Termination Date) in any geographical area where the Company or any of its Subsidiaries conduct or Affiliates conducts business (a “Competitive Business”);
(2) 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;
(3) 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; or
(4) interfere with, or attempt to interfere with, any business relationships relationship (whether formed before, on or after the Date of Grant) between the Company or any of its Subsidiaries or Affiliates and customersany customer, clientsclient, supplierssupplier, or investors investor of the Company or any of its SubsidiariesSubsidiaries or Affiliates. Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries which Competitive Business that are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which that controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person. Any such qualifying ownership shall not be deemed to be engaging in Competitive Activity or a Restrictive Covenant Violation for purposes of this Agreement.
(III) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries to leave the employment of the Company or any of its Subsidiaries; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries as of the Termination Date or who left the employment of the Company or any of its Subsidiaries coincident with, or within six (6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries for at least six (6) months.
(IV) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries any consultant then under contract with the Company or any of its Subsidiaries.
(ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 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 the Participant, 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.
Appears in 1 contract
Sources: Option Agreement (Catalent, Inc.)
Competitive Activity. (i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant and ending (A) in the event that Participant has incurred a Termination pursuant to Section 6(c) of this Agreement, on the date that is the later of (y) 12 months after the Termination Date and (z) the Vesting Date or (B) in all other cases, 12 months after the Termination Date (in either case, the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below)Person, directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any person, firm, part-nership, 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 or any of its SubsidiariesSubsidiaries or Affiliates, the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year period preceding the Termination Date;
(2) with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year immediately period preceding the Termination Date; or
(3) for whom the Participant had direct or indirect responsibility during the one one-year immediately period preceding the Termination Date.
(II) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that competes with the business of the Company or any of its SubsidiariesSubsidiaries or Affiliates, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitaminvitamins/mineral minerals/supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging packaging, and any other technology, product product, or service of the type developed, manufactured manufactured, or sold by the Company or any of its Subsidiaries or Affiliates (including, without limitation, any other business which that the Company or any of its Subsidiaries or Affiliates have plans to engage in as of the Termination Date) in any geographical area where the Company or any of its Subsidiaries conduct or Affiliates conducts business (a “Competitive Business”);
(2) 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;
(3) 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 trustee, or consultant; or
(4) interfere with, or attempt to interfere with, any business relationships relationship (whether formed before, on on, or after the Date of Grant) between the Company or any of its Subsidiaries or Affiliates and customersany customer, clientsclient, supplierssupplier, or investors investor of the Company or any of its SubsidiariesSubsidiaries or Affiliates. Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries which Competitive Business that are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which that controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person. Any such qualifying ownership shall not be deemed to be engaging in Competitive Activity or a Restrictive Covenant Violation for purposes of this Agreement.
(III) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries to leave the employment of the Company or any of its Subsidiaries; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries as of the Termination Date or who left the employment of the Company or any of its Subsidiaries coincident with, or within six (6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries for at least six (6) months.
(IV) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries any consultant then under contract with the Company or any of its Subsidiaries.
(ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 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 the Participant, 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.
Appears in 1 contract
Competitive Activity. (i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant and ending (A) in the event that Participant has incurred a Termination pursuant to Section 4(c) of this Agreement, on the date that is the later of (y) 12 months after the Termination Date and (z) the vesting date, as indicated on the Grant Notice or (B) in all other cases, 12 months after the Termination Date (in either case, the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below)Person, directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any person, firm, part-nership, 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 or any of its SubsidiariesSubsidiaries or Affiliates, the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year period preceding the Termination Date;
(2) with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year immediately period preceding the Termination Date; or
(3) for whom the Participant had direct or indirect responsibility during the one one-year immediately period preceding the Termination Date.
(II) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that competes with the business of the Company or any of its SubsidiariesSubsidiaries or Affiliates, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitaminvitamins/mineral minerals/supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries or Affiliates (including, without limitation, any other business which that the Company or any of its Subsidiaries or Affiliates have plans to engage in as of the Termination Date) in any geographical area where the Company or any of its Subsidiaries conduct or Affiliates conducts business (a “Competitive Business”);
(2) 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;
(3) 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 trustee, or consultant; or
(4) interfere with, or attempt to interfere with, any business relationships relationship (whether formed before, on or after the Date of Grant) between the Company or any of its Subsidiaries or Affiliates and customersany customer, clientsclient, supplierssupplier, or investors investor of the Company or any of its SubsidiariesSubsidiaries or Affiliates. Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries which Competitive Business that are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which that controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person. Any such qualifying ownership shall not be deemed to be engaging in Competitive Activity or a Restrictive Covenant Violation for purposes of this Agreement.
(III) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries to leave the employment of the Company or any of its Subsidiaries; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries as of the Termination Date or who left the employment of the Company or any of its Subsidiaries coincident with, or within six (6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries for at least six (6) months.
(IV) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries any consultant then under contract with the Company or any of its Subsidiaries.
(ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 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 the Participant, 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.
Appears in 1 contract
Sources: Option Agreement (Catalent, Inc.)
Competitive Activity. To the extent a Participant (i) lives in a jurisdiction where restrictive covenants are void as against public policy or (ii) has a business title below the level of “director” and receives base compensation of less than $100,000 (or its local currency equivalent) per year, Section 9(b) of this Agreement shall be considered deleted from and therefore not part of this Agreement.
(i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant and ending on the date that is 12 months after the Termination Date (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below), directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any individual person, firm, part-nershippartnership, 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 or any of its SubsidiariesSubsidiaries or Affiliates, the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year period preceding the Termination Date;
(2) with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year immediately period preceding the Termination Date; or
(3) for whom the Participant had direct or indirect responsibility during the one one-year immediately period preceding the Termination Date.
(II) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that competes with the business of the Company or any of its SubsidiariesSubsidiaries or Affiliates, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitaminvitamins/mineral supplements minerals/supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries or Affiliates (including, without limitation, any other business which that the Company or any of its Subsidiaries or Affiliates have plans to engage in as of the Termination Date) in any geographical area where the Company or any of its Subsidiaries conduct or Affiliates conducts business (a “Competitive Business”);
(2) 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;
(3) 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; or
(4) interfere with, or attempt to interfere with, any business relationships relationship (whether formed before, on or after the Date of Grant) between the Company or any of its Subsidiaries or Affiliates and customersany customer, clientsclient, supplierssupplier, or investors investor of the Company or any of its SubsidiariesSubsidiaries or Affiliates. Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries which Competitive Business that are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which that controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person. Any such qualifying ownership shall not be deemed to be engaging in Competitive Activity or a Restrictive Covenant Violation for purposes of this Agreement.
(III) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries or Affiliates to leave the employment of the Company or any of its Subsidiariessuch Employment; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries or Affiliates as of the Termination Date or who left the such employment of the Company or any of its Subsidiaries coincident with, or within six (6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries or Affiliates for at least six (6) months.
(IV) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries or Affiliates any consultant then under contract with the Company or any of its SubsidiariesSubsidiaries or Affiliates.
(ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b9(b) 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 the Participant, 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 hereinin this Section 9(b).
Appears in 1 contract
Sources: Option Agreement (Catalent, Inc.)
Competitive Activity. To the extent a Participant lives in a jurisdiction where restrictive covenants are void as against public policy, Section 10(b) of this Agreement shall be considered deleted from and therefore not part of this Agreement.
(i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant and ending on the date that is 12 months after the Termination Date (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below), directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any individual, person, firm, part-nershippartnership, 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 or any of its SubsidiariesSubsidiaries or Affiliates, the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year period preceding the Termination Date;
(2) with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year immediately period preceding the Termination Date; or
(3) for whom the Participant had direct or indirect responsibility during the one one-year immediately period preceding the Termination Date.
(II) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that competes with the business of the Company or any of its SubsidiariesSubsidiaries or Affiliates, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitaminvitamins/mineral minerals/supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries or Affiliates (including, without limitation, any other business which that the Company or any of its Subsidiaries or Affiliates have plans to engage in as of the Termination Date) in any geographical area where the Company or any of its Subsidiaries conduct or Affiliates conducts business (a “Competitive Business”);
(2) 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;
(3) 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; or
(4) interfere with, or attempt to interfere with, any business relationships relationship (whether formed before, on or after the Date of Grant) between the Company or any of its Subsidiaries or Affiliates and customersany customer, clientsclient, supplierssupplier, or investors investor of the Company or any of its SubsidiariesSubsidiaries or Affiliates. Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries which Competitive Business that are publicly traded on a national or regional stock exchange or on the over-the-the- counter market if the Participant (i) is not a controlling person of, or a member of a group which that controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person. Any such qualifying ownership shall not be deemed to be engaging in Competitive Activity or a Restrictive Covenant Violation for purposes of this Agreement.
(III) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries or Affiliates to leave the employment of the Company or any of its Subsidiariessuch Employment; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries or Affiliates as of the Termination Date or who left the employment of the Company or any of its Subsidiaries such Employment coincident with, or within six (6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries or Affiliates for at least six (6) months.
(IV) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries or Affiliates any consultant then under contract with the Company or any of its SubsidiariesSubsidiaries or Affiliates.
(ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 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 the Participant, 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 hereinin this Section 10(b).
Appears in 1 contract
Competitive Activity. (i) The Participant shall be deemed to have engaged in “Competitive Activity” if, Employee covenants and agrees that at all times during the Employee’s period commencing on the Date of Grant and ending on the date that is 12 months after the Termination Date (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below), directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any person, firm, part-nership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”), directly or indirectly, solicit or assist in soliciting in competition employment with the Company or any Company, and while Employee is receiving payments pursuant to Section 6 of its Subsidiaries, the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year period preceding the Termination Date;
(2) with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year immediately preceding the Termination Date; or
(3) for whom the Participant had direct or indirect responsibility during the one year immediately preceding the Termination Date.
(II) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that competes with the business of the Company or any of its Subsidiaries, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitamin/mineral supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries (including, without limitation, any other business which the Company or any of its Subsidiaries have plans to engage in as of the Termination Date) in any geographical area where the Company or any of its Subsidiaries conduct business (a “Competitive Business”);
(2) 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;
(3) 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; or
(4) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the Date of Grant) between the Company or any of its Subsidiaries and customers, clients, suppliers, or investors of the Company or any of its Subsidiaries. Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity engaged in the business of the Company or any of its Subsidiaries which are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (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.
(III) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries to leave the employment of the Company or any of its Subsidiaries; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries as of the Termination Date or who left the employment of the Company or any of its Subsidiaries coincident with, or within six (6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries for at least six (6) months.
(IV) During the Restricted Activity Period, the Participant Employee will not, directly or indirectly, solicit engage in, assist, or encourage have any active interest or involvement, whether as an employee, agent, consultant, creditor, advisor, officer, director, stockholder (excluding holding of less than 1% of the stock of a public company), partner, proprietor or any type of principal whatsoever in any person, firm, or business entity which, directly or indirectly, is engaged in the same business as that conducted and carried on by the Company, without the Company’s specific written consent to cease do so. Furthermore, for a period of one (1) year after the date of termination of Employee’s employment, whether such termination is voluntary or involuntary, by wrongful discharge, or otherwise, or one (1) year following the cessation of payments made pursuant to work with Section 6 of this Agreement, whichever date is later, Employee will not directly or indirectly, within 75 miles of the principal place of business of the Company, the principal place of business of any corporation or other entity owned, controlled by (or otherwise affiliated with) the Company by which Employee may also be employed or served by Employee, or any other geographic location in which Employee has specifically represented the interests of the Company or such other affiliated entity, during the twelve (12) months prior to the termination of Employee’s employment, engage in, assist, or have any active interest or involvement, whether as an employee, agent, consultant, creditor, advisor, officer, director, stockholder (excluding holding of its Subsidiaries any consultant then under contract with less than 1% of the Company stock of a public company), partner, proprietor or any type of its Subsidiariesprincipal whatsoever in any person, firm, or business entity which, directly or indirectly, is engaged in the same business as that conducted and carried on by the Company, without the Company’s specific written consent to do so.
(ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 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 the Participant, 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.
Appears in 1 contract
Competitive Activity. (iTo the extent a Participant lives in a jurisdiction where restrictive covenants are void as against public policy, Section 10(b) of this Agreement shall be considered deleted from and therefore not part of this Agreement.
i. The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant and ending on the date that is 12 months after the Termination Date (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below), directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any individual, person, firm, part-nership, 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 or any of its SubsidiariesSubsidiaries or Affiliates, the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year period preceding the Termination Date;
(2) with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year immediately period preceding the Termination Date; or
(3) for whom the Participant had direct or indirect responsibility during the one one-year immediately period preceding the Termination Date.
(II) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that competes with the business of the Company or any of its SubsidiariesSubsidiaries or Affiliates, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitaminvitamins/mineral minerals/supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries or Affiliates (including, without limitation, any other business which that the Company or any of its Subsidiaries or Affiliates have plans to engage in as of the Termination Date) in any geographical area where the Company or any of its Subsidiaries conduct or Affiliates conducts business (a “Competitive Business”);
(2) 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;
(3) 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; or
(4) interfere with, or attempt to interfere with, any business relationships relationship (whether formed before, on or after the Date of Grant) between the Company or any of its Subsidiaries or Affiliates and customersany customer, clientsclient, supplierssupplier, or investors investor of the Company or any of its SubsidiariesSubsidiaries or Affiliates. Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries which Competitive Business that are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which that controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person. Any such qualifying ownership shall not be deemed to be engaging in Competitive Activity or a Restrictive Covenant Violation for purposes of this Agreement.
(III) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries or Affiliates to leave the employment of the Company or any of its Subsidiariessuch Employment; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries or Affiliates as of the Termination Date or who left the employment of the Company or any of its Subsidiaries such Employment coincident with, or within six (6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries or Affiliates for at least six (6) months.
(IV) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries or Affiliates any consultant then under contract with the Company or any of its SubsidiariesSubsidiaries or Affiliates.
(iii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 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 the Participant, 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 hereinin this Section 10(b).
Appears in 1 contract
Competitive Activity. (ia) The Participant shall be deemed to have engaged in “Competitive Activity” if, during During the period commencing that commenced on the Closing Date of Grant and ending ends on the date that is 12 months two (2) years after the Termination Date date Executive’s employment with Catalent terminates for any reason (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below), directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity Period, the Participant Executive will not, whether on the ParticipantExecutive’s own behalf or on behalf of or in conjunction with any person, firm, part-nershippartnership, 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 Catalent or any of its Subsidiariessubsidiaries, the business of any client or prospective client:
(1i) with whom the Participant Executive had personal contact or dealings on behalf of the Company Catalent or any of its Subsidiaries during the one year period preceding the Termination DateExecutive’s termination of employment;
(2ii) with whom employees reporting to the Participant Executive have had personal contact or dealings on behalf of the Company Catalent or any of its Subsidiaries during the one year immediately preceding the Termination DateExecutive’s termination of employment; or
(3iii) for whom the Participant Executive had direct or indirect responsibility during the one year immediately preceding the Termination DateExecutive’s termination of employment.
(IIb) During the Restricted Activity Periodperiod that commenced on the Closing Date and for a period of one year following the date Executive ceases to be employed by Catalent for any reason, the Participant Executive will not directly or indirectly:
(1i) engage in any business that competes with the business of the Company Catalent or any of its Subsidiaries, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter biotechnology and vitamin/mineral supplements companies manufacturers related to pre-clinical and clinical development, formulation, analysis, analysis manufacturing and/or and packaging and any other technology, product or service of the type developed, manufactured or sold by the Company Catalent or any of its Subsidiaries (including, without limitation, any other business which the Company Catalent or any of its Subsidiaries have plans to engage in as of the Termination Datedate of Executive’s termination of employment) in any geographical area where the Company Catalent or any of its Subsidiaries conduct business (a “Competitive Business”);
(21) 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;
(32) 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; or
(43) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the Date date of Grantthis Agreement) between the Company Catalent or any of its Subsidiaries and customers, clients, suppliers, or investors of the Company Catalent or any of its Subsidiaries. Notwithstanding anything to the contrary in this Agreement, the Participant Executive may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company Catalent or any of its Subsidiaries which are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant 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.
(IIIc) During the Restricted Activity Period, the Participant Executive will not, whether on the ParticipantExecutive’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1i) solicit or encourage any employee of the Company Catalent or any of its Subsidiaries to leave the employment of the Company Catalent or any of its Subsidiaries; or
(2ii) hire any such employee who was employed by the Company Catalent or any of its Subsidiaries as of the Termination Date date of Executive’s termination of employment with Catalent or who left the employment of the Company Catalent or any of its Subsidiaries coincident with, or within six twelve (612) months prior to or afterto, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any termination of its Subsidiaries for at least six (6) monthsExecutive’s employment with Catalent.
(IVd) During the Restricted Activity Period, the Participant Executive will not, directly or indirectly, solicit or encourage to cease to work with the Company Catalent or any of its Subsidiaries any consultant then under contract with the Company Catalent or any of its Subsidiaries.
(iie) It is expressly understood and agreed that although the Participant Executive and the Company consider the restrictions contained in this Section 10(b) 6.1 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 the ParticipantExecutive, 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.
Appears in 1 contract
Sources: Management Equity Subscription Agreement (Catalent Pharma Solutions, Inc.)
Competitive Activity. (i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant and ending (A) in the event that Participant has incurred a Termination pursuant to Section 6(c) of this Agreement, on the date that is the later of (y) 12 months after the Termination Date and (z) the Regular Vesting Date (as defined on Exhibit A) or (B) in all other cases, 12 months after the Termination Date (in either case, the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below)Person, directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any person, firm, part-nership, 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 or any of its SubsidiariesSubsidiaries or Affiliates, the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year period preceding the Termination Date;
(2) with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year immediately period preceding the Termination Date; or
(3) for whom the Participant had direct or indirect responsibility during the one one-year immediately period preceding the Termination Date.
(II) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that competes with the business of the Company or any of its SubsidiariesSubsidiaries or Affiliates, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitaminvitamins/mineral minerals/supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product product, or service of the type developed, manufactured manufactured, or sold by the Company or any of its Subsidiaries or Affiliates (including, without limitation, any other business which that the Company or any of its Subsidiaries or Affiliates have plans to engage in as of the Termination Date) in any geographical area where the Company or any of its Subsidiaries conduct or Affiliates conducts business (a “Competitive Business”);
(2) 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;
(3) 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 trustee, or consultant; or
(4) interfere with, or attempt to interfere with, any business relationships relationship (whether formed before, on on, or after the Date of Grant) between the Company or any of its Subsidiaries or Affiliates and customersany customer, clientsclient, supplierssupplier, or investors investor of the Company or any of its SubsidiariesSubsidiaries or Affiliates. Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries which Competitive Business that are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which that controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person. Any such qualifying ownership shall not be deemed to be engaging in Competitive Activity or a Restrictive Covenant Violation for purposes of this Agreement.
(III) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries or Affiliates to leave the employment of the Company or any of its Subsidiariessuch Employment; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries or Affiliates as of the Termination Date or who left the such employment of the Company or any of its Subsidiaries coincident with, or within six (6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries or Affiliates for at least six (6) months.
(IV) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries or Affiliates any consultant then under contract with the Company or any of its SubsidiariesSubsidiaries or Affiliates.
(iii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 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 the Participant, 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 hereinin this Section 10(b).
(ii) To the extent a Participant (i) lives in a jurisdiction where restrictive covenants are void as against public policy or (ii) has a business title below the level of “director” and receives base compensation of less than $100,000 (or its local currency equivalent) per year, this Section 10(b) of this Agreement shall be considered deleted from and therefore not part of this Agreement.
Appears in 1 contract
Competitive Activity. (i1) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant and ending (A) in the event that Participant has incurred a Termination pursuant to Section 6(c) of this Agreement, on the date that is the later of (y) 12 months after the Termination Date and (z) the Vesting Date or (B) in all other cases, 12 months after the Termination Date (in either case, the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below)Person, directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any person, firm, part-nership, 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 or any of its SubsidiariesSubsidiaries or Affiliates, the business of any client or prospective client:
(1a) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year period preceding the Termination Date;
(2b) with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year immediately period preceding the Termination Date; or
(3c) for whom the Participant had direct or indirect responsibility during the one one-year immediately period preceding the Termination Date.
(II) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that competes with the business of the Company or any of its SubsidiariesSubsidiaries or Affiliates, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitaminvitamins/mineral minerals/supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries or Affiliates (including, without limitation, any other business which that the Company or any of its Subsidiaries or Affiliates have plans to engage in as of the Termination Date) in any geographical area where the Company or any of its Subsidiaries conduct or Affiliates conducts business (a “Competitive Business”);
(2) enter the employ of, or render any services service to, any Person (or any division or controlled or controlling Affiliate of any Person) who or which engages in a Competitive Business;
(3) 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; or
(4) interfere with, or attempt to interfere with, any business relationships relationship (whether formed before, on or after the Date of Grant) between the Company or any of its Subsidiaries or Affiliates and customersany customer, clientsclient, suppliers, supplier or investors investor of the Company or any of its SubsidiariesSubsidiaries or Affiliates. Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries which Competitive Business that are publicly traded on a national or regional stock exchange or on the over-the-the- counter market if the Participant (i) is not a controlling person of, or a member of a group which that controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person. Any such qualifying ownership shall not be deemed to be engaging in Competitive Activity or a Restrictive Covenant Violation for purposes of this Agreement.
(III) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries or Affiliates to leave the employment of the Company or any of its Subsidiariessuch Employment; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries or Affiliates as of the Termination Date or who left the such employment of the Company or any of its Subsidiaries coincident with, or within six (6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries or Affiliates for at least six (6) months.
(IV) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries or Affiliates any consultant then under contract with the Company or any of its SubsidiariesSubsidiaries or Affiliates.
(iii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 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 the Participant, 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 hereinin this Section 10(b).
(ii) To the extent a Participant (i) lives in a jurisdiction where restrictive covenants are void as against public policy or (ii) has a business title below the level of “director” and receives base compensation of less than $100,000 (or its local currency equivalent) per year, this Section 10(b) shall be considered deleted from and therefore not part of this Agreement.
Appears in 1 contract
Competitive Activity. (ia) The Participant Executive shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant date hereof and ending on the later of (x) the date that is 12 18 months after the Termination Date date the Executive’s employment with the Company and its Subsidiaries is terminated or (y) the maximum number of months of base salary the Executive is entitled to receive as severance (the “Restricted Activity Period”), the ParticipantExecutive, whether on the ParticipantExecutive’s own behalf or on behalf of or in conjunction with any other Person (as defined below)Person, directly or indirectly, indirectly violates any of the following prohibitions:
(Ii) During the Restricted Activity Period, the Participant Executive will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any person, firm, part-nership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”), directly or indirectly, not solicit or assist in soliciting in competition with the Company or any of its Subsidiaries, a Competitive Business (as defined below) the business of any client or prospective client:
(1A) with whom the Participant Executive had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one one-year period preceding the Termination DateExecutive’s termination of employment;
(2B) with whom employees directly reporting to the Participant Executive (or such employee’s direct reports) have had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year immediately preceding the Termination DateExecutive’s termination of employment; or
(3C) for whom the Participant Executive had direct or indirect responsibility during the one year immediately preceding the Termination DateExecutive’s termination of employment.
(IIii) During the Restricted Activity Period, the Participant Executive will not directly or indirectly:
(1A) engage in any business that is engaged in, or has plans to engage in, at any time during the Restricted Period, any activity that competes with in the business of manufacturing and marketing food products that directly compete with the core brands of the Company or any of its Subsidiaries, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitamin/mineral supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries (including, without limitation, any other business which the Company or any of its Subsidiaries have plans to engage in as of the Termination Date (and for such purpose, a “core brand” shall be any brand generating annual revenues in an amount equal to at least 5% of the Company’s annual revenues, in the fiscal year preceding the fiscal year of such Termination Date) in any geographical area that is within 100 miles of any geographical area where the Company or any of its Subsidiaries conduct business Affiliates manufactures and markets its products or services (a “Competitive Business”);
(2B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling Affiliate affiliate of any Person) who or which engages in a Competitive Business;
(3C) 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; or
(4D) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the Date date of Grantthis Agreement) between the Company or any of its Subsidiaries Affiliates and customers, clients, suppliers, partners, members or investors of the Company or any of its Subsidiaries. Affiliates.
(iii) Notwithstanding anything to the contrary in this Agreement, the Participant Executive may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries a Competitive Business which are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant Executive (i) is not a controlling person of, or a member of a group which controls, such Person person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person.
(IIIiv) During the Restricted Activity Period, the Participant Executive will not, whether on the ParticipantExecutive’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1A) solicit or encourage any employee of the Company or any of its Subsidiaries Affiliates to leave the employment of the Company or any of its SubsidiariesAffiliates; or
(2B) hire any such employee who was employed by the Company or any of its Subsidiaries Affiliates as of the Termination Date date of the Executive’s termination of employment with the Company or who left the employment of the Company or any of its Subsidiaries Affiliates coincident with, or within six 120 days (6one year in the case of any such employee who reported directly to the Executive immediately preceding the Executive’s termination of employment (or such employee’s direct reports)) months prior to or after, the Termination Date; provided, howevertermination of the Executive’s employment with the Company. Any solicitation or hiring, that this restriction shall cease to apply to any the Executive is not personally involved in, of an employee who has not been employed by or former employee of the Company or any through general advertising shall not, of its Subsidiaries for at least six (6) monthsitself, be a breach of this Section 6.1(a)(iv).
(IVv) During the Restricted Activity Period, the Participant Executive will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries Affiliates any consultant then under contract with the Company or any of its SubsidiariesAffiliates, is such action would result in the Company being disadvantaged.
(iib) It is expressly understood and agreed that although the Participant Executive and the Company consider the restrictions contained in this Section 10(b) 6.1 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 the ParticipantExecutive, 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
(c) The period of time during which the provisions of this Section 6.1 shall be in effect shall be extended by the length of time during which the Executive is in breach of the terms hereof as determined by any court of competent jurisdiction on the Company’s application for injunctive relief.
Appears in 1 contract
Sources: Management Unit Subscription Agreement (Pinnacle Foods Finance LLC)
Competitive Activity. To the extent a Participant (i) lives in a jurisdiction where restrictive covenants are void as against public policy or (ii) has a business title below the level of “director” and receives base compensation of less than $100,000 (or its local currency equivalent) per year, Section 10(b) of this Agreement shall be considered deleted from and therefore not part of this Agreement.
(i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant and ending on the date that is 12 months after the Termination Date (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below), directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any individual, person, firm, part-nershippartnership, 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 or any of its SubsidiariesSubsidiaries or Affiliates, the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year period preceding the Termination Date;
(2) with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year immediately period preceding the Termination Date; or
(3) for whom the Participant had direct or indirect responsibility during the one one-year immediately period preceding the Termination Date.
(II) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that competes with the business of the Company or any of its SubsidiariesSubsidiaries or Affiliates, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitamin/mineral supplements vitamins/minerals/supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging packaging, and any other technology, product product, or service of the type developed, manufactured manufactured, or sold by the Company or any of its Subsidiaries or Affiliates (including, without limitation, any other business which that the Company or any of its Subsidiaries or Affiliates have plans to engage in as of the Termination Date) in any geographical area where the Company or any of its Subsidiaries conduct or Affiliates conducts business (a “Competitive Business”);
(2) 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;
(3) 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 trustee, or consultant; or
(4) interfere with, or attempt to interfere with, any business relationships relationship (whether formed before, on on, or after the Date of Grant) between the Company or any of its Subsidiaries or Affiliates and customersany customer, clientsclient, supplierssupplier, or investors investor of the Company or any of its SubsidiariesSubsidiaries or Affiliates. Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries which Competitive Business that are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which that controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person. Any such qualifying ownership shall not be deemed to be engaging in Competitive Activity or a Restrictive Covenant Violation for purposes of this Agreement.
(III) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries or Affiliates to leave the employment of the Company or any of its Subsidiariessuch Employment; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries or Affiliates as of the Termination Date or who left the such employment of the Company or any of its Subsidiaries coincident with, or within six (6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries or Affiliates for at least six (6) months.
(IV) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries or Affiliates any consultant then under contract with the Company or any of its SubsidiariesSubsidiaries or Affiliates.
(ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 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 the Participant, 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 hereinin this Section 10(b).
Appears in 1 contract
Competitive Activity. To the extent a Participant lives in a jurisdiction where restrictive covenants are void as against public policy, Section 10(b) of this Agreement shall be considered deleted from and therefore not part of this Agreement.
(i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant and ending on the date that is 12 months after the Termination Date (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below), directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any individual, person, firm, part-nershippartnership, 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 or any of its SubsidiariesSubsidiaries or Affiliates, the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year period preceding the Termination Date;
(2) with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year immediately period preceding the Termination Date; or
(3) for whom the Participant had direct or indirect responsibility during the one one-year immediately period preceding the Termination Date.
(II) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that competes with the business of the Company or any of its SubsidiariesSubsidiaries or Affiliates, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitaminvitamins/mineral minerals/supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries or Affiliates (including, without limitation, any other business which that the Company or any of its Subsidiaries or Affiliates have plans to engage in as of the Termination Date) in any geographical area where the Company or any of its Subsidiaries conduct or Affiliates conducts business (a “Competitive Business”);
(2) 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;
(3) 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; or
(4) interfere with, or attempt to interfere with, any business relationships relationship (whether formed before, on or after the Date of Grant) between the Company or any of its Subsidiaries or Affiliates and customersany customer, clientsclient, supplierssupplier, or investors investor of the Company or any of its SubsidiariesSubsidiaries or Affiliates. Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries which Competitive Business that are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which that controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person.
. Any such qualifying ownership shall not be deemed to be engaging in Competitive Activity or a Restrictive Covenant Violation for purposes of this Agreement. (III) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries or Affiliates to leave the employment of the Company or any of its Subsidiariessuch Employment; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries or Affiliates as of the Termination Date or who left the employment of the Company or any of its Subsidiaries such Employment coincident with, or within six (6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries or Affiliates for at least six (6) months.
(IV) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries any consultant then under contract with the Company or any of its Subsidiaries.
(ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 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 the Participant, 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.
Appears in 1 contract
Competitive Activity. (i) The Participant shall be deemed to have engaged in “Competitive Activity” if, Employee covenants and agrees that at all times during the Employee’s period commencing on the Date of Grant and ending on the date that is 12 months after the Termination Date (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below), directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any person, firm, part-nership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”), directly or indirectly, solicit or assist in soliciting in competition employment with the Company or any Company, and while Employee is receiving payments pursuant to Section 6 of its Subsidiaries, the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year period preceding the Termination Date;
(2) with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year immediately preceding the Termination Date; or
(3) for whom the Participant had direct or indirect responsibility during the one year immediately preceding the Termination Date.
(II) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that competes with the business of the Company or any of its Subsidiaries, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitamin/mineral supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries (including, without limitation, any other business which the Company or any of its Subsidiaries have plans to engage in as of the Termination Date) in any geographical area where the Company or any of its Subsidiaries conduct business (a “Competitive Business”);
(2) 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;
(3) 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; or
(4) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the Date of Grant) between the Company or any of its Subsidiaries and customers, clients, suppliers, or investors of the Company or any of its Subsidiaries. Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity engaged in the business of the Company or any of its Subsidiaries which are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (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.
(III) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries to leave the employment of the Company or any of its Subsidiaries; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries as of the Termination Date or who left the employment of the Company or any of its Subsidiaries coincident with, or within six (6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries for at least six (6) months.
(IV) During the Restricted Activity Period, the Participant Employee will not, directly or indirectly, solicit engage in, assist, or encourage have any active interest or involvement, whether as an employee, agent, consultant, creditor, advisor, officer, director, stockholder (excluding holding of less than 1% of the stock of a public company), partner, proprietor or any type of principal whatsoever in any person, firm, or business entity which, directly or indirectly, is engaged in the same business as that conducted and carried on by the Company, without the Company’s specific written consent to cease do so. Furthermore, in consideration of the specialized training and access to work with confidential information, for a period of six (6) months after the date of termination of Employee’s employment, or six (6) months following the cessation of payments made pursuant to Section 6 of this Agreement, whether such termination is voluntary or involuntary, by wrongful discharge, or otherwise, whichever date is later, Employee will not directly or indirectly, engage in a competitive activity in any of the geographic markets in which the Employee has worked for the twelve (12) months preceding his termination, or within 75 miles of the principal place of business of the Company, the principal place of business of any corporation or other entity owned, controlled by (or otherwise affiliated with) the Company by which Employee may also be employed or served by Employee, or any other geographic location in which Employee has specifically represented the interests of the Company or such other affiliated entity, during the twelve (12) months prior to the termination of Employee’s employment, engage in, assist, or have any active interest or involvement, whether as an employee, agent, consultant, creditor, advisor, officer, director, stockholder (excluding holding of its Subsidiaries any consultant then under contract with less than 1% of the Company stock of a public company), partner, proprietor or any type of its Subsidiariesprincipal whatsoever in any person, firm, or business entity which, directly or indirectly, is engaged in the same business as that conducted and carried on by the Company, without the Company’s specific written consent to do so.
(ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 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 the Participant, 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.
Appears in 1 contract
Competitive Activity. (i) The Participant shall be deemed to have engaged in “Competitive Activity” if, Employee covenants and agrees that at all times during the Employee's period commencing on the Date of Grant and ending on the date that is 12 months after the Termination Date (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below), directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any person, firm, part-nership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”), directly or indirectly, solicit or assist in soliciting in competition employment with the Company or any Company, and while Employee is receiving payments pursuant to Section 6 of its Subsidiaries, the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year period preceding the Termination Date;
(2) with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year immediately preceding the Termination Date; or
(3) for whom the Participant had direct or indirect responsibility during the one year immediately preceding the Termination Date.
(II) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that competes with the business of the Company or any of its Subsidiaries, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitamin/mineral supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries (including, without limitation, any other business which the Company or any of its Subsidiaries have plans to engage in as of the Termination Date) in any geographical area where the Company or any of its Subsidiaries conduct business (a “Competitive Business”);
(2) 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;
(3) 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; or
(4) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the Date of Grant) between the Company or any of its Subsidiaries and customers, clients, suppliers, or investors of the Company or any of its Subsidiaries. Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity engaged in the business of the Company or any of its Subsidiaries which are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (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.
(III) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries to leave the employment of the Company or any of its Subsidiaries; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries as of the Termination Date or who left the employment of the Company or any of its Subsidiaries coincident with, or within six (6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries for at least six (6) months.
(IV) During the Restricted Activity Period, the Participant Employee will not, directly or indirectly, solicit engage in, assist, or encourage have any active interest or involvement, whether as an employee, agent, consultant, creditor, advisor, officer, director, stockholder (excluding holding of less than 1% of the stock of a public company), partner, proprietor or any type of principal whatsoever in any person, firm, or business entity which, directly or indirectly, is engaged in the same business as that conducted and carried on by the Company, without the Company's specific written consent to cease do so. Furthermore, in consideration of the specialized training and access to work with confidential information, for a period of one (1) year after the date of termination of Employee's employment, or one (1) year following the cessation of payments made pursuant to Section 6 of this Agreement, whether such termination is voluntary or involuntary, by wrongful discharge, or otherwise, whichever date is later, Employee will not directly or indirectly, engage in a competitive activity in any of the geographic markets in which the Employee has worked for the twelve (12) months preceding his termination, or within 75 miles of the principal place of business of the Company, the principal place of business of any corporation or other entity owned, controlled by (or otherwise affiliated with) the Company by which Employee may also be employed or served by Employee, or any other geographic location in which Employee has specifically represented the interests of the Company or such other affiliated entity, during the twelve (12) months prior to the termination of Employee's employment, engage in, assist, or have any active interest or involvement, whether as an employee, agent, consultant, creditor, advisor, officer, director, stockholder (excluding holding of its Subsidiaries any consultant then under contract with less than 1% of the Company stock of a public company), partner, proprietor or any type of its Subsidiariesprincipal whatsoever in any person, firm, or business entity which, directly or indirectly, is engaged in the same business as that conducted and carried on by the Company, without the Company's specific written consent to do so.
(ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 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 the Participant, 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.
Appears in 1 contract
Competitive Activity. (i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant date hereof and ending on the later of (x) the date that is 12 months after the Termination Date date the Participant’s employment with the Company and its Subsidiaries is terminated or (y) the maximum number of years of base salary the Participant is entitled to receive as severance under any agreement with, or plan or policy of the Company or an Affiliate (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below)person or entity, directly or indirectly, indirectly violates any of the following prohibitions:
(IA) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any person, firm, part-nership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”), directly or indirectly, not solicit or assist in soliciting in competition with the Company or any of its Subsidiaries, a Competitive Business (as defined below) the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one one-year period preceding the Termination DateParticipant’s termination of employment;
(2) with whom employees directly reporting to the Participant (or the Participant’s direct reports) have had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year immediately preceding the Termination DateParticipant’s termination of employment; or
(3) for whom the Participant had direct or indirect responsibility during the one year immediately preceding the Termination DateParticipant’s termination of employment.
(IIB) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that is engaged in, or has plans to engage in, at any time during the Restricted Period, any activity that competes with in the business of manufacturing and marketing food products that directly compete with the core brands of the Company or any of its Subsidiaries, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitamin/mineral supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries (including, without limitation, any other business which the Company or any of its Subsidiaries have plans to engage in as of the Termination Date (and for such purpose, a “core brand” shall be any brand generating annual revenues in an amount equal to at least 5% of the Company’s annual revenues, in the fiscal year preceding the fiscal year of such Termination Date) in any geographical area that is within 100 miles from any geographical area where the Company or any of its Subsidiaries conduct business Affiliates manufactures and markets its products or services (a “Competitive Business”);
(2) enter the employ of, or render any services to, any Person (or any division or controlled or controlling Affiliate affiliate of any Person) who or which engages in a Competitive Business;
(3) 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; or
(4) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the Date date of Grantthis Agreement) between the Company or any of its Subsidiaries Affiliates and customers, clients, suppliers, partners, members or investors of the Company or any of its Subsidiaries. Affiliates.
(C) Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries a Competitive Business which are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which controls, such Person person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person.
(IIID) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries Affiliates to leave the employment of the Company or any of its SubsidiariesAffiliates; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries Affiliates as of the Termination Date date of the Participant’s termination of employment with the Company or who left the employment of the Company or any of its Subsidiaries Affiliates coincident with, or within six 120 days (6one year in the case of any such employee who reported directly to the Participant immediately preceding the Participant’s termination of employment (or the Participant’s direct reports)) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by termination of the Company or any of its Subsidiaries for at least six (6) monthsParticipant’s employment with the Company.
(IVE) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries Affiliates any consultant then under contract with the Company or any its Affiliates, is such action would result in the Company being disadvantaged. Any solicitation or hiring, that the Participant is not personally involved in, of its Subsidiariesan employee or former employee of the Company through general advertising shall not, of itself, be a breach of this Section 5(a)(i)(E).
(ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 5 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 the Participant, 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
(iii) The period of time during which the provisions of this Section 5 shall be in effect shall be extended by the length of time during which the Participant is in breach of the terms hereof as determined by any court of competent jurisdiction on the Company’s application for injunctive relief.
Appears in 1 contract
Sources: Nonqualified Stock Option Agreement (Pinnacle Foods Inc.)
Competitive Activity. (i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant date hereof and ending on the later of (x) the date that is 12 months after the Termination Date date the Participant’s employment with the Company and its Subsidiaries is terminated or (y) the maximum number of years of base salary the Participant is entitled to receive as severance under any agreement with, or plan or policy of the Company or an Affiliate (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below)person or entity, directly or indirectly, indirectly violates any of the following prohibitions:
(IA) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any person, firm, part-nership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”), directly or indirectly, not solicit or assist in soliciting in competition with the Company or any of its Subsidiaries, a Competitive Business (as defined below) the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one one-year period preceding the Termination DateParticipant’s termination of Employment;
(2) with whom employees directly reporting to the Participant (or the Participant’s direct reports) have had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year immediately preceding the Termination DateParticipant’s termination of Employment; or
(3) for whom the Participant had direct or indirect responsibility during the one year immediately preceding the Termination DateParticipant’s termination of Employment.
(IIB) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that is engaged in, or has plans to engage in, at any time during the Restricted Period, any activity that competes with in the business of manufacturing and marketing food products that directly compete with the core brands of the Company or any of its Subsidiaries, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitamin/mineral supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries (including, without limitation, any other business which the Company or any of its Subsidiaries have plans to engage in as of the Termination Date (and for such purpose, a “core brand” shall be any brand generating annual revenues in an amount equal to at least 5% of the Company’s annual revenues, in the fiscal year preceding the fiscal year of such Termination Date) in any geographical area that is within 100 miles from any geographical area where the Company or any of its Subsidiaries conduct business Affiliates manufactures and markets its products or services (a “Competitive Business”);
(2) enter the employ of, or render any services to, any Person (or any division or controlled or controlling Affiliate affiliate of any Person) who or which engages in a Competitive Business;
(3) 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; or
(4) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the Date date of Grantthis Agreement) between the Company or any of its Subsidiaries Affiliates and customers, clients, suppliers, partners, members or investors of the Company or any of its Subsidiaries. Affiliates.
(C) Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries a Competitive Business which are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which controls, such Person person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person.
(IIID) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries Affiliates to leave the employment of the Company or any of its SubsidiariesAffiliates; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries Affiliates as of the Termination Date date of the Participant’s termination of Employment with the Company or who left the employment of the Company or any of its Subsidiaries Affiliates coincident with, or within six 120 days (6one year in the case of any such employee who reported directly to the Participant immediately preceding the Participant’s termination of Employment (or the Participant’s direct reports)) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by termination of the Company or any of its Subsidiaries for at least six (6) monthsParticipant’s Employment with the Company.
(IV3) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries Affiliates any consultant then under contract with the Company or any its Affiliates, is such action would result in the Company being disadvantaged. Any solicitation or hiring, that the Participant is not personally involved in, of its Subsidiaries.an employee or former employee of the Company through general advertising shall not, of itself, be a breach of this Section 7(a)(i)(D)
(ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 7 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 the Participant, 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
(iii) The period of time during which the provisions of this Section 7 shall be in effect shall be extended by the length of time during which the Participant is in breach of the terms hereof as determined by any court of competent jurisdiction on the Company’s application for injunctive relief.
Appears in 1 contract
Sources: Restricted Stock Unit Agreement (Pinnacle Foods Inc.)
Competitive Activity. To the extent a Participant lives in a jurisdiction where restrictive covenants are void as against public policy, this Section 6(b) shall be considered deleted from and therefore not part of this Agreement.
(i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant and ending on the date that is 12 months after the Termination Date (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below), directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any individual, person, firm, part-nership, 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 or any of its SubsidiariesSubsidiaries or Affiliates, the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year period preceding the Termination Date;
(2) with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year immediately period preceding the Termination Date; or
(3) for whom the Participant had direct or indirect responsibility during the one one-year immediately period preceding the Termination Date.
(II) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that competes with the business of the Company or any of its SubsidiariesSubsidiaries or Affiliates, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitaminvitamins/mineral minerals/supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries or Affiliates (including, without limitation, any other business which that the Company or any of its Subsidiaries or Affiliates have plans to engage in as of the Termination Date) in any geographical area where the Company or any of its Subsidiaries conduct or Affiliates conducts business (a “Competitive Business”);
(2) 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;
(3) 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; or
(4) interfere with, or attempt to interfere with, any business relationships relationship (whether formed before, on or after the Date of Grant) between the Company or any of its Subsidiaries or Affiliates and customersany customer, clientsclient, supplierssupplier, or investors investor of the Company or any of its SubsidiariesSubsidiaries or Affiliates. Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries which Competitive Business that are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which that controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person. Any such qualifying ownership shall not be deemed to be engaging in Competitive Activity or a Restrictive Covenant Violation for purposes of this Agreement.
(III) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries or Affiliates to leave the employment of the Company or any of its Subsidiariessuch Employment; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries or Affiliates as of the Termination Date or who left the employment of the Company or any of its Subsidiaries such Employment coincident with, or within six (6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries or Affiliates for at least six (6) months.
(IV) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries or Affiliates any consultant then under contract with the Company or any of its Subsidiaries.
Subsidiaries or Affiliates. (ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b6(b) 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 the Participant, 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 hereinin this Section 6(b).
Appears in 1 contract
Sources: Performance Restricted Stock Agreement (Catalent, Inc.)
Competitive Activity. (i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant and ending on the date that is the later of (x) 12 months after the Termination Date and (y) the vesting date, as indicated on the Grant Notice (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below)Person, directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any person, firm, part-nership, 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 or any of its SubsidiariesSubsidiaries or Affiliates, the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year period preceding the later of the Termination DateDate and the end of the provision of services pursuant to any Consulting Agreement;
(2) with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year immediately period preceding the later of the Termination DateDate and the end of the provision of services pursuant to any Consulting Agreement; or
(3) for whom the Participant had direct or indirect responsibility during the one one-year immediately period preceding the later of the Termination DateDate and the end of the provision of services pursuant to any Consulting Agreement.
(II) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that competes with the business of the Company or any of its SubsidiariesSubsidiaries or Affiliates, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitaminvitamins/mineral minerals/supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries or Affiliates (including, without limitation, any other business which that the Company or any of its Subsidiaries or Affiliates have plans to engage in as of the Termination Date) in any geographical area where the Company or any of its Subsidiaries conduct or Affiliates conducts business (a “Competitive Business”);
(2) 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;
(3) 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 trustee, or consultant; or
(4) interfere with, or attempt to interfere with, any business relationships relationship (whether formed before, on or after the Date of Grant) between the Company or any of its Subsidiaries or Affiliates and customersany customer, clientsclient, supplierssupplier, or investors investor of the Company or any of its SubsidiariesSubsidiaries or Affiliates. Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries which Competitive Business that are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which that controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person. Any such qualifying ownership shall not be deemed to be engaging in Competitive Activity or a Restrictive Covenant Violation for purposes of this Agreement.
(III) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries or Affiliates to leave the employment of the Company or any of its Subsidiariessuch Employment; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries or Affiliates as of the Termination Date or who left the such employment of the Company or any of its Subsidiaries coincident with, or within six (6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries or Affiliates for at least six (6) months.
(IV) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries or Affiliates any consultant then under contract with the Company or any of its SubsidiariesSubsidiaries or Affiliates.
(iii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b9(b) 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 the Participant, 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 hereinin this Section 9(b).
(ii) To the extent a Participant (i) lives in a jurisdiction where restrictive covenants are void as against public policy or (ii) has a business title below the level of “director” and receives base compensation of less than $100,000 (or its local currency equivalent) per year, this Section 9(b) of this Agreement shall be considered deleted from and therefore not part of this Agreement.
Appears in 1 contract
Sources: Option Agreement (Catalent, Inc.)
Competitive Activity. To the extent a Participant (i) lives in a jurisdiction where restrictive covenants are void as against public policy or (ii) has a business title below the level of “director” and receives base compensation of less than $100,000 (or its local currency equivalent) per year, Section 9(b) of this Agreement shall be considered deleted from and therefore not part of this Agreement.
(i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant and ending on the date that is 12 months after the Termination Date (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below), directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any individual person, firm, part-nershippartnership, 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 or any of its SubsidiariesSubsidiaries or Affiliates, the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year period preceding the Termination Date;
(2) with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries or Affiliates during the one one-year immediately period preceding the Termination Date; or
(3) for whom the Participant had direct or indirect responsibility during the one one-year immediately period preceding the Termination Date.
(II) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that competes with the business of the Company or any of its SubsidiariesSubsidiaries or Affiliates, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitaminvitamins/mineral supplements minerals/supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries or Affiliates (including, without limitation, any other business which that the Company or any of its Subsidiaries or Affiliates have plans to engage in as of the Termination Date) in any geographical area where the Company or any of its Subsidiaries conduct or Affiliates conducts business (a “Competitive Business”);
(2) 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;
(3) 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 trustee, or consultant; or
(4) interfere with, or attempt to interfere with, any business relationships relationship (whether formed before, on or after the Date of Grant) between the Company or any of its Subsidiaries or Affiliates and customersany customer, clientsclient, supplierssupplier, or investors investor of the Company or any of its SubsidiariesSubsidiaries or Affiliates. Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries which Competitive Business that are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which that controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person. Any such qualifying ownership shall not be deemed to be engaging in Competitive Activity or a Restrictive Covenant Violation for purposes of this Agreement.
(III) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries or Affiliates to leave the employment of the Company or any of its Subsidiariessuch Employment; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries or Affiliates as of the Termination Date or who left the such employment of the Company or any of its Subsidiaries coincident with, or within six (6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries or Affiliates for at least six (6) months.
(IV) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries or Affiliates any consultant then under contract with the Company or any of its SubsidiariesSubsidiaries or Affiliates.
(ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b9(b) 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 the Participant, 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 hereinin this Section 9(b).
Appears in 1 contract
Sources: Option Agreement (Catalent, Inc.)
Competitive Activity. (i) The Participant shall be deemed to have engaged in “Competitive Activity” if, during the period commencing on the Date of Grant date hereof and ending on the later of (x) the date that is 12 months after the Termination Date date the Participant’s Employment with the Company and its Subsidiaries is terminated or (y) the maximum number of years of base salary the Participant is entitled to receive as severance under any agreement with, or plan or policy of the Company or an Affiliate (the “Restricted Activity Period”), the Participant, whether on the Participant’s own behalf or on behalf of or in conjunction with any other Person (as defined below)person or entity, directly or indirectly, indirectly violates any of the following prohibitions:
(IA) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any person, firm, part-nership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”), directly or indirectly, not solicit or assist in soliciting in competition with the Company or any of its Subsidiaries, a Competitive Business (as defined below) the business of any client or prospective client:
(1) with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one one-year period preceding the Termination DateParticipant’s termination of Employment;
(2) with whom employees directly reporting to the Participant (or the Participant’s direct reports) have had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year immediately preceding the Termination DateParticipant’s termination of Employment; or
(3) for whom the Participant had direct or indirect responsibility during the one year immediately preceding the Termination DateParticipant’s termination of Employment.
(IIB) During the Restricted Activity Period, the Participant will not directly or indirectly:
(1) engage in any business that is engaged in, or has plans to engage in, at any time during the Restricted Period, any activity that competes with in the business of manufacturing and marketing food products that directly compete with the core brands of the Company or any of its Subsidiaries, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitamin/mineral supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed, manufactured or sold by the Company or any of its Subsidiaries (including, without limitation, any other business which the Company or any of its Subsidiaries have plans to engage in as of the Termination Date (and for such purpose, a “core brand” shall be any brand generating annual revenues in an amount equal to at least 5% of the Company’s annual revenues, in the fiscal year preceding the fiscal year of such Termination Date) in any geographical area that is within 100 miles from any geographical area where the Company or any of its Subsidiaries conduct business Affiliates manufactures and markets its products or services (a “Competitive Business”);
(2) enter the employ of, or render any services to, any Person (or any division or controlled or controlling Affiliate affiliate of any Person) who or which engages in a Competitive Business;
(3) 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; or
(4) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the Date date of Grantthis Agreement) between the Company or any of its Subsidiaries Affiliates and customers, clients, suppliers, partners, members or investors of the Company or any of its Subsidiaries. Affiliates.
(C) Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or indirectly own, solely as an investment, securities of any entity Person engaged in the business of the Company or any of its Subsidiaries a Competitive Business which are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which controls, such Person person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person.
(IIID) During the Restricted Activity Period, the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(1) solicit or encourage any employee of the Company or any of its Subsidiaries Affiliates to leave the employment of the Company or any of its SubsidiariesAffiliates; or
(2) hire any such employee who was employed by the Company or any of its Subsidiaries Affiliates as of the Termination Date date of the Participant’s termination of Employment with the Company or who left the employment of the Company or any of its Subsidiaries Affiliates coincident with, or within six 120 days (6one year in the case of any such employee who reported directly to the Participant immediately preceding the Participant’s termination of Employment (or the Participant’s direct reports)) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by termination of the Company or any of its Subsidiaries for at least six (6) monthsParticipant’s Employment with the Company.
(IV3) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its Subsidiaries Affiliates any consultant then under contract with the Company or any its Affiliates, is such action would result in the Company being disadvantaged. Any solicitation or hiring, that the Participant is not personally involved in, of its Subsidiaries.an employee or former employee of the Company through general advertising shall not, of itself, be a breach of this Section 7(a)(i)(D)
(iii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this Section 10(b) 7 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 the Participant, 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
(iii) The period of time during which the provisions of this Section 7 shall be in effect shall be extended by the length of time during which the Participant is in breach of the terms hereof as determined by any court of competent jurisdiction on the Company’s application for injunctive relief.
Appears in 1 contract
Sources: Performance Share Unit Agreement (Pinnacle Foods Inc.)