Non-Competition and Non-Solicitation. (a) Executive agrees and acknowledges that the Confidential Information that Executive has already received and will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest of the Company, to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers. (b) Executive hereby agrees and covenants that he shall not, without the prior written consent of the Company, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory: (1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company; (2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement; (3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or (4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Company.
Appears in 3 contracts
Sources: Executive Employment Agreement (CES Synergies, Inc.), Executive Employment Agreement (CES Synergies, Inc.), Executive Employment Agreement (CES Synergies, Inc.)
Non-Competition and Non-Solicitation. [For Chief Executive Officer only]
(a) Executive Stockholder agrees and acknowledges that for a period of three (3) years immediately following the Confidential Information that Executive has already received and Closing Date, Stockholder will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest of the Company, to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall not, without the prior written consent of the Company, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult foroperate, participate inperform, have any interest in or otherwise be connected engaged in any manner or concerned with the ownership, management, operation or control of any business that develops, manufactures, sells, markets or distributes, anywhere in competition the world, products or devices intended for the treatment of venous reflux disease that compete with the business of the Company;
(2) Recruitany products or devices being developed, solicit manufactured, sold, marketed or hire, distributed by or attempt to recruit, solicit or hire, any employee, or independent contractor on behalf of the Company to leave as of the employment (or independent contractor relationship) thereofdate hereof, whether or not including without limitation any such employee products or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer devices that are under development as of the Company, with whom the Company had significant contact during Executive’s employment date hereof but not yet offered for sale by the Company (whether under this Agreement or otherwise)the “Business”) ; provided, business of the kind or competitive with the business done by the Company with such customer or however, that (i) Stockholder shall be permitted to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Companywork for a division, entity, or if subgroup of any of such customer elects to move its competing business to a person other than the Companyso long as such division, provide any services (of the kind or competitive with the business of the Company) for such customerentity, or have any discussions regarding any such service with such customer, on behalf of such other person; or
subgroup does not engage in a business (4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, development, manufacturing, marketing, sales or technical or sales support) that makes such entity compete with the Business and Stockholder does not facilitate, directly or indirectly, competition with the Business, and (ii) Stockholder may also receive and hold in such situation equity in such entity that he obtains in connection with such service on the same basis as other employees similarly situated to Stockholder; provided, further, that Stockholder shall not be prohibited from owning not more than 1% of any supplierclass of securities of any entity, distributor, co-venturer whether such securities are publicly traded on a recognized securities exchange or joint venturer are privately held. Stockholder expressly acknowledges that the foregoing geographic area is reasonable and necessary to protect the legitimate business interests of the Company, especially given the special information and knowledge held by Stockholder. Further, Stockholder acknowledges that the Company to discontinue or reduce its business would not proceed with the Company or otherwise interfere transactions contemplated by the Merger Agreement without receiving the full scope of the protections provided for hereunder and that any lesser geographic restriction would not adequately protect the Company. Stockholder also agrees that for such period, the Stockholder shall not in any way make any negative or disparaging statements or communications about the Surviving Corporation, its products or business); conversely, the Surviving Corporation, Parent and the officers thereof agree to not make any negative or disparaging comments or communications regarding Stockholder for such period.
(b) Stockholder agrees that for a period of two (2) years following the Closing Date, Stockholder will not, directly or indirectly, induce any employee to terminate his or her employment with the business Surviving Corporation or hire any such employee, provided, however, the foregoing shall not prohibit Stockholder from making general solicitations through advertising, internet postings or other similar solicitations not targeted at employees of the CompanySurviving Corporation, or from hiring any employee of the Surviving Corporation who responds to any such general solicitation without encouragement or inducement by the Stockholder.
(c) Stockholder acknowledges that the restrictions on his activities under this Agreement are necessary for the reasonable protection of Parent and Sub and constitute a material inducement to Parent and Sub entering into and performing under the Merger Agreement. Stockholder further acknowledges, stipulates and agrees that a breach of any of such obligations and agreements will result in irreparable harm and continuing damage to Parent and Sub for which there will be no adequate remedy at law and further agrees that in the event of any breach of said obligations and agreements, Parent, Sub and their successors and assigns will be entitled to injunctive relief and to such other relief as is proper under the circumstances.
(d) It is the desire and intent of the parties to this Agreement that the provisions of this Section 1.9 shall be enforced to the fullest extent permissible under the Laws and public policies applied in each jurisdiction in which enforcement is sought. If any covenant set forth in this Section 1.9 is determined by any court to be unenforceable by reason of its extending for too great a period of time or over too great a geographic area, or by reason of its being too extensive in any other respect, such covenant shall be interpreted to extend only for the longest period of time and over the greatest geographic area, and to otherwise have the broadest application as shall be enforceable.
Appears in 3 contracts
Sources: Merger Agreement (Covidien PLC), Merger Agreement (Vnus Medical Technologies Inc), Tender and Voting Agreement (Covidien Group S.a.r.l.)
Non-Competition and Non-Solicitation. (a) The Executive agrees and acknowledges that the Confidential Information that the Executive has already received and will receive is are valuable to the Company Company, its affiliates and/or its clients or customers, and that its protection and maintenance constitutes a legitimate business interest of the Company, its affiliates and/or its clients or customers to be protected by the non-competition restrictions set forth herein. The Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on the Executive. The Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “TerritoryGeographic Boundary”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the TerritoryGeographic Boundary, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers. The Executive also acknowledges that the business of the Company is the offering through its online marketplace of high quality new, overstock, close-out and refurbished brand name consumer merchandise (the “Business of the Company”).
(b) The Executive hereby agrees and covenants that he shall not, without the prior written consent of the Company, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two one percent (21%) percent of the outstanding voting shares of any publicly held company), or whether on the Executive's ’s own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period Executive’s employment with the Company and thereafter to for a period of one year following the extent described belowtermination of this Agreement for any reason, within in the TerritoryGeographic Boundary:
(1i) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business Business of the Company;
(2ii) Solicit, persuade or induce any Customer: to terminate, reduce or refrain from renewing, extending, or entering into contractual or other relationships with the Company or to become a customer of or enter into any contractual or other relationship with any other individual, person or entity for the purpose of purchasing competitive products or services; or
(iii) Recruit, solicit hire, induce, contact, divert or hiresolicit, or attempt to recruit, solicit induce, contact, divert or hiresolicit, any employee, or independent contractor employee of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Company.
Appears in 3 contracts
Sources: Employment Agreement (Cape Coastal Trading Corp), Employment Agreement (Cape Coastal Trading Corp), Employment Agreement (Cape Coastal Trading Corp)
Non-Competition and Non-Solicitation. (a) The Executive agrees and acknowledges that the Confidential Information that the Executive has already received and will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest of the Company, to be protected by the non-competition restrictions set forth herein. The Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on the Executive. The Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”"Geographic Boundary") (to the extent the Company comes to operate, either directly own or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, operate any material power generating asset in areas other than the United States during the term of the Employment PeriodExecutive's employment, the definition of Territory Geographic Boundary shall be automatically expanded to cover such other areas), and that the TerritoryGeographic Boundary, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) The Executive hereby agrees and covenants that he shall not, without the prior written consent of the Company, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two one percent (21%) percent of the outstanding voting shares of any publicly held company), or whether on the Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period Executive's employment with the Company and thereafter for a period equal to the extent described belowgreater of (i) one year following the termination of this Agreement or of the Executive's employment with the Company or (ii) the period during which the Executive continues to receive his base salary pursuant to Sections 11(e) or 11(f)(ii) of this Agreement following the termination of this Agreement and of the Executive's employment, within in the TerritoryGeographic Boundary:
(1i) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business Business of the Company;
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer . The "Business of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with " is defined as an energy management company in the business of acquiring and actively managing assets in the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between power generation industry within the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the CompanyGeographic Boundary.
Appears in 3 contracts
Sources: Employment Agreement (High Tide Ventures, Inc.), Employment Agreement (High Tide Ventures, Inc.), Employment Agreement (High Tide Ventures, Inc.)
Non-Competition and Non-Solicitation. (a) Executive agrees and acknowledges that the Confidential Information that Executive has already received and will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest of the Company, to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall not, without the prior written consent of the Company, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to during the extent period described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company. Notwithstanding the restrictions set forth above, Company acknowledges and accepts that Executive has existing investments in various patent assets and Executive represents and warrants that the management of those assets will not interfere in any manner with the management of the Company and Executive’s responsibilities to Company and he will not assume ownership, control or management of any additional investments in any patents assets or other assets that are deemed to be competitive to Company (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company);
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Company. With respect to the activities described in Paragraphs (1), (2), (3) and (4) above, the restrictions of this Section 13(b) shall continue during the Employment Period and until one (1) year following the termination of this Agreement or of Executive’s employment with the Company (including upon expiration of this Agreement).
Appears in 3 contracts
Sources: Executive Employment Agreement (Marathon Patent Group, Inc.), Executive Employment Agreement (Marathon Patent Group, Inc.), Executive Employment Agreement (Marathon Patent Group, Inc.)
Non-Competition and Non-Solicitation. (a) Executive The Employee agrees and acknowledges that the Confidential Information that Executive the Employee has already received and will receive is valuable to the Company Corporation and that its protection and maintenance constitutes a legitimate business interest of the CompanyCorporation, to be protected by the non-competition restrictions set forth herein. Executive The Employee agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executivethe Employee. Executive The Employee also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States Corporation’s business is conducted worldwide (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the CompanyCorporation, its affiliates and/or its clients or customers. The provisions of this Section 9 shall survive the termination of the Employee’s employment hereunder for the time periods specified below.
(b) Executive The Employee hereby agrees and covenants that he shall not, not without the prior written consent of the CompanyCorporation, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than (i) as a holder of less than two 5% (2%) percent of five percent)of the outstanding voting securities of a company whose shares of are traded on any publicly held companynational securities exchange or (ii) as a limited partner, passive minority interest holder in a venture capital fund, private equity fund or similar investment entity which holds or may hold an equity or debt position in portfolio companies that are competitive with the Corporation; provided however, that the Employee shall be precluded from serving as an operating partner, general partner, manager or governing board designee with respect to such portfolio companies), or whether on Executive's the Employee’s own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period Term and thereafter to the extent described below, within the Territory:.
(1i) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business Business of the Company;
(2) RecruitCorporation, solicit as defined in the next sentence. “Business” shall mean the development and sale of lighter than air and heavier than air tethered aerostats or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Companydrones.
Appears in 2 contracts
Sources: Employment Agreement (Safe Pro Group Inc.), Employment Agreement (Safe Pro Group Inc.)
Non-Competition and Non-Solicitation. (a) Executive agrees and 11.1 The Employee acknowledges that in the Confidential Information that Executive has already received Employee’s position of Vice President and will receive is valuable to Chief Tax Officer, the Company Employee occupies a position of trust and that its protection and maintenance constitutes a legitimate business interest of the Company, to be protected by the non-competition restrictions set forth hereinconfidence. Executive agrees and acknowledges The Employee understands that the non-competition following restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that may limit the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended Employee’s ability to be sold, provided, licensed and/or distributed to customers and clients earn a livelihood in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall not, without the prior written consent of the Companywhich, directly or indirectly, compete with the Company. However, the Employee agrees that the Employee will receive sufficient consideration and other benefits as an Employee of the Company to clearly justify such restrictions which, in any capacity whatsoeverevent, includinggiven the Employee’s skills and ability will not prevent the Employee from earning a living. The Employee acknowledges that all restrictions contained in this Section 11 are reasonable and valid as to time, geographical area, and scope of activity to be restrained for the adequate protection of the legitimate business interests and goodwill of the Corporation and are no broader than is necessary to protect such interests and goodwill. In consideration of the provisions hereof, for the Restricted Period (as defined below), the Employee will not, except as specifically provided below, anywhere in any county of any state within the geographic boundaries of the Company’s operations, which, for the purposes of any event occurring prior to the Date of Termination, shall mean the Company’s operations as existing as of the date of such event and, for the purpose of any event occurring on or after the Date of Termination, shall mean the Company’s operations as existing on the Date of Termination (the “Restricted Territory”), directly or indirectly, acting individually or as the owner, shareholder, partner or management employee of any entity: (a) engage in the operation of a solid waste collection, transporting or disposal business, transfer facility, recycling facility, materials recovery facility or solid waste landfill; or (b) enter the employ as a manager of, or render any personal services to or for the benefit of, or assist in or facilitate the solicitation of customers for, or receive remuneration in the form of management salary, commissions or otherwise from, any business engaged in such activities in such counties; or (c) receive or purchase a financial interest in, make a loan to, or make a gift in support of, any such business in any capacity, including without limitation, as an employee, employer, consultant, principala sole proprietor, partner, shareholder, officer, director director, principal agent or trustee; provided, however, that the Employee may own, directly or indirectly, solely as an investment, securities of any other individual business traded on any national securities exchange or representative capacity (other than quoted on any NASDAQ market, provided the Employee is not a holder controlling person of, or a member of less than two a group which controls, such business and further provided that the Employee does not, in the aggregate, directly or indirectly, own Two Percent (2%) percent or more of any class of securities of such business. The term “Restricted Period” shall mean the period commencing on the Effective Date and ending on the first anniversary of the outstanding voting shares Date of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the CompanyTermination.
Appears in 2 contracts
Sources: Employment Agreement (Waste Connections, Inc.), Employment Agreement (Waste Connections, Inc.)
Non-Competition and Non-Solicitation. (a) The Executive agrees and acknowledges that the Company has invested substantial time, money and resources in the development and retention of its Inventions, Confidential Information (including trade secrets), customers, accounts and business partners, and further acknowledges that during the course of the Executive's employment with the Company the Executive has already received had and will receive is valuable have access to the Company Company's Inventions and that its protection Confidential Information (including trade secrets), and maintenance constitutes a legitimate will be introduced to existing and prospective customers, accounts and business interest partners of the Company. The Executive acknowledges and agrees that any and all "goodwill" associated with any existing or prospective customer, account or business partner belongs exclusively to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients including, but not limited to, any goodwill created as a result of direct or customers are indirect contacts or are intended to be soldrelationships between the Executive and any existing or prospective customers, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly accounts or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Periodbusiness partners. Additionally, the definition of Territory shall be automatically expanded to cover such other areas)parties acknowledge and agree that Executive possesses skills that are special, unique or extraordinary and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information ofCompany depends upon his/her use of such skills on its behalf. In recognition of this, the Executive covenants and agrees that:
(a) During the Term, and to protect the goodwill and other legitimate business interests offor a period of six (6) months thereafter, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall may not, without the prior written consent of the Board, (whether as an employee, agent, servant, owner, partner, consultant, independent contractor, representative, stockholder or in any other capacity whatsoever) participate in any business that offers products or services competitive in any way to those offered by the Company or that were under active development by the Company during the Term, provided that nothing herein shall prohibit the Executive from (i) owning securities of corporations which are listed on a national securities exchange or traded in the national over-the-counter market in an amount which shall not exceed 3% of the outstanding shares of an such corporation or (ii) after termination of his/her employment (x) participating in the business of a separately managed and operated division, subsidiary or affiliate of a Competitor, provided that such division, subsidiary or affiliate does not offer Competitive Services and the Executive has no business communications with employees of any division, subsidiary or affiliate of the Competitor that offers Competitive Services regarding the business of the competitive division, subsidiary or affiliate or (y) becoming affiliated with an entity that is not a Competitor but that is subsequently acquired by or merged with a Competitor, provided that, following such acquisition or merger, s/he is participating in the business of a separately managed and operated division, subsidiary or affiliate of the Competitor that does not offer Competitive Services and s/he has no business communications with employees of any division, subsidiary or affiliate of the Competitor that offers Competitive Services regarding the business of the competitive division, subsidiary or affiliate.
(b) During the Term, and for a period of one (1) year thereafter, the Executive may not entice, solicit or encourage any Company employee to leave the employ of the Company or any independent contractor to sever its engagement with the Company, absent prior written consent to do so from the Company.
(c) During the Term, and for a period of one (1) year thereafter, the Executive may not, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruitentice, solicit or hireencourage any customer, prospective customer, vendor, strategic partner or attempt to recruit, solicit or hire, any employee, or independent contractor business associate of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), cease doing business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business relationship with the Company or otherwise interfere in any way refrain from establishing or expanding a relationship with the business of the Company.
Appears in 2 contracts
Sources: Employment Agreement (Predictive Systems Inc), Employment Agreement (Predictive Systems Inc)
Non-Competition and Non-Solicitation. (a) Executive agrees and 11.1 The Employee acknowledges that in the Confidential Information that Executive has already received Employee’s position of Vice President – Finance, the Employee occupies a position of trust and will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest of the Company, to be protected by the non-competition restrictions set forth hereinconfidence. Executive agrees and acknowledges The Employee understands that the non-competition following restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that may limit the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended Employee’s ability to be sold, provided, licensed and/or distributed to customers and clients earn a livelihood in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall not, without the prior written consent of the Companywhich, directly or indirectly, compete with the Company. However, the Employee agrees that the Employee will receive sufficient consideration and other benefits as an Employee of the Company to clearly justify such restrictions which, in any capacity whatsoeverevent, includinggiven the Employee’s skills and ability will not prevent the Employee from earning a living. The Employee acknowledges that all restrictions contained in this Section 11 are reasonable and valid as to time, geographical area, and scope of activity to be restrained for the adequate protection of the legitimate business interests and goodwill of the Corporation and are no broader than is necessary to protect such interests and goodwill. In consideration of the provisions hereof, for the Restricted Period (as defined below), the Employee will not, except as specifically provided below, anywhere in any county of any state within the geographic boundaries of the Company’s operations, which, for the purposes of any event occurring prior to the Date of Termination, shall mean the Company’s operations as existing as of the date of such event and, for the purpose of any event occurring on or after the Date of Termination, shall mean the Company’s operations as existing on the Date of Termination (the “Restricted Territory”), directly or indirectly, acting individually or as the owner, shareholder, partner or management employee of any entity: (a) engage in the operation of a solid waste collection, transporting or disposal business, transfer facility, recycling facility, materials recovery facility or solid waste landfill; or (b) enter the employ as a manager of, or render any personal services to or for the benefit of, or assist in or facilitate the solicitation of customers for, or receive remuneration in the form of management salary, commissions or otherwise from, any business engaged in such activities in such counties; or (c) receive or purchase a financial interest in, make a loan to, or make a gift in support of, any such business in any capacity, including without limitation, as an employee, employer, consultant, principala sole proprietor, partner, shareholder, officer, director director, principal agent or trustee; provided, however, that the Employee may own, directly or indirectly, solely as an investment, securities of any other individual business traded on any national securities exchange or representative capacity (other than quoted on any NASDAQ market, provided the Employee is not a holder controlling person of, or a member of less than two a group which controls, such business and further provided that the Employee does not, in the aggregate, directly or indirectly, own Two Percent (2%) percent or more of any class of securities of such business. The term “Restricted Period” shall mean the period commencing on the Effective Date and ending on the first anniversary of the outstanding voting shares Date of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the CompanyTermination.
Appears in 2 contracts
Sources: Employment Agreement (Waste Connections, Inc.), Employment Agreement (Waste Connections, Inc.)
Non-Competition and Non-Solicitation. (a) Executive agrees and acknowledges that For an eighteen (18) month period following the Confidential Information that Executive has already received and will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest Closing Date, Seller shall not (1) solicit Branch Customers for financial products or services of the Companytype included in the Purchased Assets or the Assumed Liabilities on the basis of their being or having been a Branch Customer (e.g., to be protected through use of a list of Branch Customers), or (2) establish or maintain any retail branch banking office or ATM in the areas listed in Schedule 7.7(a) serving the mass retail banking market and the small business banking market currently served by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, Seller through Business Direct; provided, licensed and/or distributed to customers and clients however, that, for the avoidance of doubt, this Section 7.7(a) shall not prohibit or in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly any way limit Seller or through the engagement of a distributor or joint or co-venturer, or sell a significant amount any of its Affiliates, after the Closing Date, from offering products and services to customers located, in areas other than the United States during the term as part of the Employment Periodbusinesses of Seller and its Affiliates that are not being sold pursuant to this Agreement, including the conduct of the Retained Business, the definition Excluded Assets or the Excluded Liabilities and any business of Territory Seller conducted on a national or regional basis so long as such activities do not involve the solicitation of customers described in the preceding clause (1); provided further that this Section 7.7(a) shall be automatically expanded to cover such other areasnot restrict Seller or any of its Affiliates from making any acquisition (through merger, stock purchase or purchase of all or substantially all of another banking institution’s assets) of any then existing retail branch banking office or ATM from another banking institution located in the areas listed in Schedule 7.7(a), and provided that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect newly acquired retail branch banking offices or ATMs within the goodwill and other legitimate business interests of, areas listed in Schedule 7.7(a) would not constitute more than 40% of such acquired entity’s consolidated total revenues in the Company, its affiliates and/or its clients or customerslast completed fiscal quarter immediately preceding the consummation of the purchase transaction.
(b) Executive hereby agrees Without limiting the Confidentiality Agreement, for an eighteen (18) month period following the Closing Date:
(1) Purchaser and covenants that he its Affiliates shall not, without the prior written consent of the Company, directly or indirectly, solicit for employment or hire any Retained Employee; provided that this Section 7.7(b)(1) shall not prohibit Purchaser or any of its Affiliates from (i) engaging in solicitation by means of a general purpose advertisement not specifically targeted at the Retained Employees or hiring any capacity whatsoeverRetained Employee as a result of such general purpose advertisement or (ii) hiring any Retained Employee who was terminated by Seller after the Closing Date; and
(2) Seller shall not, directly or indirectly, solicit for employment any Transferred Branch Employee; provided that this Section 7.7(b)(2) shall not prohibit Seller from (i) engaging in solicitation by means of a general purpose advertisement not specifically targeted at the Transferred Branch Employees or hiring any Transferred Branch Employee as a result of such general purpose advertisement or (ii) hiring any Transferred Branch Employee who was terminated by Purchaser or any of its Affiliates after the Closing Date.
(c) For an eighteen (18) month period following the Closing Date, and without limiting any confidentiality obligation otherwise applicable to it or them, Purchaser and its Affiliates shall not, directly or indirectly, use any information regarding the Retained Businesses in their possession as a result of the transactions contemplated by this Agreement, including as part of the books and records that are Purchased Assets, to solicit customers of the Retained Business for products or services; provided that nothing in this Section 7.7(c) shall be construed as limiting the ability of Purchaser to (1) engage in general solicitation, advertising or marketing not specifically targeted at such customers; or (2) service customers of the Retained Businesses who also are customers of Purchaser or its Affiliates.
(d) From the date hereof until the Closing Date, Purchaser will not use the existence of the transactions contemplated by this Agreement (or its status as Purchaser) to attempt to (1) solicit Branch Customers through specifically targeted advertising or marketing or (2) induce such Branch Customers to close any account and open accounts directly with Purchaser.
(e) Each of Purchaser and Seller understands and acknowledges that (1) it would be difficult to calculate damages to Seller or Purchaser, as applicable, from any breach of the obligations of Purchaser or Seller, as applicable, under this Section 7.7, (2) injury to Purchaser or Seller, as applicable, from any such breach would be irreparable and impossible to measure and (3) the remedy at law for any breach or threatened breach of this Section 7.7 would therefore be an inadequate remedy and, accordingly, Purchaser and Seller shall, in addition to all other available remedies (including, without limitation, seeking such damages as either can show it has sustained by reason of such breach and/or the exercise of all other rights either has under this Agreement), be entitled to seek injunctive relief, specific performance and other equitable remedies without the necessity of showing actual damages or posting of a bond.
(f) Purchaser and Seller understand and acknowledge that the restrictive covenants and other agreements contained in this Section 7.7 are an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder essential part of less than two (2%) percent this Agreement and the transactions contemplated hereby and thereby. It is the intention of the outstanding voting shares parties that, if any of any publicly the restrictions or covenants contained herein are held company)to cover a geographic area or to be for a length of time that is not permitted by applicable Law, or whether on Executive's own behalf is in any way construed to be too broad or on behalf to any extent invalid, such provision shall not be construed to be null, void and of any other person or entity or otherwise howsoeverno effect, during the Employment Period and thereafter but to the extent described belowthat such provision would then be valid or enforceable under applicable Law, within such provision shall be construed and interpreted or reformed to provide for a restriction or covenant having the Territory:maximum enforceable geographic area, time period and other provisions as shall be valid and enforceable under applicable Law.
(1g) EngageFor the avoidance of doubt, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business none of the Company;
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor restrictions imposed by applicable subsections of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor this Section 7.7 that is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business applicable to a person other than the Company, provide any services (that is an Affiliate of the kind or competitive with the business of the Company) for a party shall apply to such customer, or have any discussions regarding any person if such service with such customer, on behalf person ceases to be an Affiliate of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Company.
Appears in 2 contracts
Sources: Purchase and Assumption Agreement (Flagstar Bancorp Inc), Purchase and Assumption Agreement (Flagstar Bancorp Inc)
Non-Competition and Non-Solicitation. (a) Executive agrees Except as otherwise permitted under paragraph 1(d) of this Agreement and acknowledges that except for the Confidential Information that Executive has already received and will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest of the Company, to be protected by the non-competition restrictions permitted activities (or ownership interests) set forth herein. on Exhibit B, while the Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided is employed by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either he agrees that he will not directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
indirectly (b) Executive hereby agrees and covenants that he shall not, without the prior written consent of the Company) engage in, directly assist, perform services for, establish or indirectlyopen, or have any equity interest (other than ownership of 5% or less of the outstanding stock of any corporation listed on the New York or American Stock Exchange or included in the National Association of Securities Dealers Automated Quotation System) in any capacity whatsoeverperson, includingfirm, without limitationcorporation, or business entity (whether as an employee, employerofficer, director, agent, security holder, creditor, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two (2%otherwise) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected that engages in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor activity which is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or directly competitive with the business of the Company and its affiliates. In addition, for an 18-month period after the Executive’s Date of Termination under the circumstances described in paragraphs 3(c) or 3(e), or for a 6-month period after the Executive’s Date of Termination due to non-renewal of the Agreement Term by the Company before the Executive attains age 62, except for the permitted activities (or ownership interests) set forth on Exhibit B, the Executive agrees that he will not actively engage in the business of the acquisition or development of office properties by acting as an investor, principal, broker or intermediary with respect to office property acquisitions or development projects or by soliciting or otherwise identifying specific acquisition opportunities, but the provisions of this sentence are not to be construed so as to otherwise prevent the Executive from engaging in office asset management or consulting activities. The restrictions in this paragraph 6(a) are intended to apply to the United States only.
(b) While the Executive is employed by the Company, and for a period of 18 months after the Executive’s Date of Termination, the Executive agrees that he will not in any manner, directly or indirectly (without prior written consent of the Company) employ or solicit for such customer, employment for himself or have any discussions regarding any such service with such customer, on behalf of such other person; or
business entity (4) Interfere with any relationship, contractual or otherwise, between other than the Company and its Subsidiaries) any other partyindividual who was, including, without limitation, any supplier, distributor, co-venturer or joint venturer during the period of the Company to discontinue or reduce its business Executive’s employment with the Company or otherwise the 18-month period following the Executive’s Date of Termination, an employee, officer, agent or representative of the Company (or any successor corporation into which the Company may be merged or consolidated).
(c) While the Executive is employed by the Company, and for a period of twelve (12) months after the Executive’s Date of Termination, the Executive agrees that he will not, whether for his own account or for the account of any other person, firm, corporation or other business organization, (i) intentionally interfere in any way with the business Company’s relationship with, or endeavor to entice away from the Company or any of the CompanySubsidiaries, any person who during the Agreement Term or such twelve (12) month period is or was a client, customer, tenant or source of capital or other investor therein or (ii) usurp an investment opportunity of the Company or any of the Subsidiaries in a property, an entity or a person in which the Company invested during the Agreement Term or actively considered investing in during the Agreement Term.
Appears in 2 contracts
Sources: Employment Agreement (Republic Property Trust), Employment Agreement (Republic Property Trust)
Non-Competition and Non-Solicitation. (a) a. The Executive agrees and acknowledges that the Confidential Information that the Executive has already received and will receive is are valuable to the Company Company, its affiliates and/or its clients or customers, and that its protection and maintenance constitutes a legitimate business interest of the Company, its affiliates and/or its clients or customers to be protected by the non-competition restrictions set forth herein. The Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on the Executive. The Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States PRC (the “TerritoryGeographic Boundary”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the TerritoryGeographic Boundary, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) b. The Executive hereby agrees and covenants that he shall not, without the prior written consent of the Company, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two one percent (21%) percent of the outstanding voting shares of any publicly held company), or whether on the Executive's ’s own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period Executive’s employment with the Company and thereafter to for a period of one year following after the extent described belowtermination of this Agreement or of the Executive’s employment with the Company for any reason, within in the TerritoryGeographic Boundary:
(1i) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business “Business of the Company;.” The “Business of the Company” is defined as providing advertisement service to the public in the P.R.China.
(2ii) Recruit, solicit hire, induce, contact, divert or hiresolicit, or attempt to recruit, solicit hire, induce, contact, divert or hiresolicit, any employee, consultant or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee employee, consultant or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Company.
Appears in 2 contracts
Sources: Employment Agreement (T.O.D. Taste on Demand Inc), Employment Agreement (Golden Key International Inc)
Non-Competition and Non-Solicitation. (a) The Executive agrees and acknowledges that the Confidential Information that the Executive has already received and will receive is valuable to the Company Parent Group and that its protection and maintenance constitutes a legitimate business interest of the CompanyParent Group, to be protected by the non-competition restrictions set forth herein. The Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on the Executive. The Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients Parent Group’s Business (as defined in and throughout the United States Section 12(b)(1) below) is conducted worldwide (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, any member of the Company, its affiliates Parent Group and/or its such member’s clients or customers. The provisions of this Section 12 shall survive the termination of the Executive’s employment hereunder for the time periods specified below.
(b) The Executive hereby agrees and covenants that he shall not, not without the prior written consent of the CompanyBoard, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than (i) as a holder of less than two (2%) percent of the outstanding voting securities of a company whose shares of are traded on any publicly held companynational securities exchange or (ii) as a limited partner, passive minority interest holder in a venture capital fund, private equity fund or similar investment entity which holds or may hold an equity or debt position in portfolio companies that are competitive with the Parent; provided, however, that the Executive shall be precluded from serving as an operating partner, general partner, manager or governing board designee with respect to such portfolio companies), or whether on the Executive's ’s own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period Term and thereafter to the extent described below, within the Territory:
(1i) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business Business of the CompanyParent, as defined in the next sentence. For purposes hereof, the Parent Group’s “Business” shall mean research, development, techniques and technology in any manner involving or related to the separation of isotopes;
(2ii) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company Parent Group to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement, for the purpose of competing with the Business of the Parent Group;
(3iii) Attempt in any manner to solicit or accept from any customer of the CompanyParent Group, with whom the Company Executive had significant contact during Executive’s employment by the Company Parent Group (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company Parent Group with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the CompanyParent Group, or if any such customer elects to move its business to a person other than the CompanyParent Group, provide any services (of the kind or competitive with the business of the Company) Parent Group for such customer, or have any discussions regarding any such service with such customer, on behalf of such other personperson for the purpose of competing with the Business of the Parent Group; or
(4iv) Interfere with any relationship, contractual or otherwise, between the Company Parent Group and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company Parent Group, for the purpose of soliciting such other party to discontinue or reduce its business with the Company or otherwise interfere in any way Parent Group for the purpose of competing with the business Business of the CompanyParent Group. With respect to the activities described in Paragraphs (i), (ii), (iii) and (iv) above, the restrictions of this Section 12(b) shall continue during the term of this Agreement and for a period of one (1) year thereafter.
Appears in 2 contracts
Sources: Executive Employment Agreement (ASP Isotopes Inc.), Executive Employment Agreement (ASP Isotopes Inc.)
Non-Competition and Non-Solicitation. (a) The Executive agrees and acknowledges that the Confidential Information that the Executive has already received and will receive is valuable to The Company and the Company and that its protection and maintenance constitutes a legitimate business interest of The Company and the Company, to be protected by the non-competition restrictions set forth herein. The Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on the Executive. The Executive also acknowledges that the products Company’s and services developed or provided by the The Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States ’s business is conducted worldwide (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers. The provisions of this Section 9 shall survive the termination of the Executive’s employment hereunder for the time periods specified below.
(b) The Executive hereby agrees and covenants that he shall not, not without the prior written consent of the Company, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than (i) as a holder of less than two (2%) percent of the outstanding voting securities of a company whose shares of are traded on any publicly held companynational securities exchange or (ii) as a limited partner or passive minority interest holder in a venture capital fund, private equity fund or similar investment entity which holds or may hold an equity or debt position in portfolio companies that are competitive with the Company or the Company; provided however, that the Executive shall be precluded from serving as an operating partner, general partner, manager or governing board designee with respect to such portfolio companies), or whether on the Executive's ’s own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period Term and thereafter to the extent described below, within the Territory:
(1i.) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business Business of the Company, as defined in the next sentence. For purposes hereof, the term “Business” shall mean the sales and service of satellite voice and data equipment;
(2ii.) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement, for the purpose of competing with the Business of the Company;
(3iii.) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company Executive had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business Business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business Business of the Company) Company for such customer, or have any ·discussions regarding any such service with such customer, on behalf of such other personperson for the purpose of competing with the Business of the Company; or
(4iv.) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company Company, for the purpose of soliciting such other party to discontinue or reduce its business with the Company or otherwise interfere in any way for the purpose of competing with the business Business of the Company. With respect to the activities described in subparagraphs (i), (ii), (iii) and (iv) above, the restrictions of this Section 8 shall continue during the Term hereof and, upon termination of the Executive’s employment pursuant to Section 5 for a period of one (1) year thereafter.
Appears in 2 contracts
Sources: Employment Agreement (Orbital Tracking Corp.), Employment Agreement (Orbital Tracking Corp.)
Non-Competition and Non-Solicitation. (a) The Executive agrees and acknowledges that the Confidential Information that the Executive has already received and will receive is valuable to the Company Parent and that its protection and maintenance constitutes a legitimate business interest of the CompanyParent, to be protected by the non-competition restrictions set forth herein. The Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on the Executive. The Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients Parent’s Business (as defined in and throughout the United States Section 13(b) (1) below) is conducted worldwide (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the CompanyParent, its affiliates and/or its clients or customers. The provisions of this Section 13 shall survive the termination of the Executive’s employment hereunder for the time periods specified below.
(b) The Executive hereby agrees and covenants that he shall not, not without the prior written consent of the CompanyParent, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than (i) as a holder of less than two (2%) percent of the outstanding voting securities of a company whose shares of are traded on any publicly held companynational securities exchange or (ii) as a limited partner, passive minority interest holder in a venture capital fund, private equity fund or similar investment entity which holds or may hold an equity or debt position in portfolio companies that are competitive with the Parent; provided however, that the Executive shall be precluded from serving as an operating partner, general partner, manager or governing board designee with respect to such portfolio companies), or whether on the Executive's ’s own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period Term and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business Business of the Company;Parent, as defined in the next sentence. For purposes hereof, the Parent’s “Business” shall mean research, development, techniques and technology in any manner involving or related to regeneration of functionally polarized tissue by use of Leucine-rich repeat-containing G-protein coupled Receptor (LGR) expressing cells and any and all inventions, technology and trade secrets related thereto or a result of the services of Employee hereunder, as well as all activities that involve the making, use or licensing thereof.
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company Parent to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement, for the purpose of competing with the Business of the Parent;
(3) Attempt in any manner to solicit or accept from any customer of the CompanyParent, with whom the Company Executive had significant contact during Executive’s employment by the Company Parent (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company Parent with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the CompanyParent, or if any such customer elects to move its business to a person other than the CompanyParent, provide any services (of the kind or competitive with the business of the Company) Parent for such customer, or have any discussions regarding any such service with such customer, on behalf of such other personperson for the purpose of competing with the Business of the Parent; or
(4) Interfere with any relationship, contractual or otherwise, between the Company Parent and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company Parent, for the purpose of soliciting such other party to discontinue or reduce its business with the Company or otherwise interfere in any way Parent for the purpose of competing with the business Business of the CompanyParent. With respect to the activities described in Paragraphs (1), (2), (3) and (4) above, the restrictions of this Section 13(b) shall continue during the Term of this Agreement and for a period of two (2) years thereafter.
Appears in 2 contracts
Sources: Executive Employment Agreement (Polarityte, Inc.), Executive Employment Agreement (Polarityte, Inc.)
Non-Competition and Non-Solicitation. (a) The Executive agrees and acknowledges that the Confidential Information that the Executive has already received and will receive is valuable to the Company Parent and that its protection and maintenance constitutes a legitimate business interest of the CompanyParent, to be protected by the non-competition restrictions set forth herein. The Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on the Executive. The Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients Parent’s Business (as defined in and throughout the United States Section 13(b) (1) below) is conducted worldwide (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the CompanyParent, its affiliates and/or its clients or customers. The provisions of this Section 13 shall survive the termination of the Executive’s employment hereunder for the time periods specified below.
(b) The Executive hereby agrees and covenants that he shall not, not without the prior written consent of the CompanyParent, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than (i) as a holder of less than two (2%) percent of the outstanding voting securities of a company whose shares of are traded on any publicly held companynational securities exchange or (ii) as a limited partner, passive minority interest holder in a venture capital fund, private equity fund or similar investment entity which holds or may hold an equity or debt position in portfolio companies that are competitive with the Parent; provided however, that the Executive shall be precluded from serving as an operating partner, general partner, manager or governing board designee with respect to such portfolio companies), or whether on the Executive's ’s own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period Term and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business Business of the Company;Parent, as defined in the next sentence. For purposes hereof, the Parent’s “Business” shall mean research, development, techniques and technology in any manner involving or related to regeneration of functionally polarized tissue by use of Leucine-rich repeat-containing G- protein coupled Receptor (LGR) expressing cells and any and all inventions, technology and trade secrets related thereto or a result of the services of Employee hereunder, as well as all activities that involve the making, use or licensing thereof.
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company Parent to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement, for the purpose of competing with the Business of the Parent;
(3) Attempt in any manner to solicit or accept from any customer of the CompanyParent, with whom the Company Executive had significant contact during Executive’s employment by the Company Parent (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company Parent with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the CompanyParent, or if any such customer elects to move its business to a person other than the CompanyParent, provide any services (of the kind or competitive with the business of the Company) Parent for such customer, or have any discussions regarding any such service with such customer, on behalf of such other personperson for the purpose of competing with the Business of the Parent; or
(4) Interfere with any relationship, contractual or otherwise, between the Company Parent and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company Parent, for the purpose of soliciting such other party to discontinue or reduce its business with the Company or otherwise interfere in any way Parent for the purpose of competing with the business Business of the CompanyParent. With respect to the activities described in Paragraphs (1), (2), (3) and (4) above, the restrictions of this Section 13(b) shall continue during the Term of this Agreement and for a period of two (2) years thereafter.
Appears in 2 contracts
Sources: Executive Employment Agreement (Polarityte, Inc.), Executive Employment Agreement (Polarityte, Inc.)
Non-Competition and Non-Solicitation. (a) Executive agrees and acknowledges that For the Confidential Information that Executive has already received and will receive is valuable Term of this Agreement, none of (i) NCIC, (ii) NPLP, (iii) any Subsidiary of NCIC or NPLP, or (iv) any successor or assign of NCIC or NPLP or their respective Subsidiaries, except for any successor or assign of NCIC or NPLP or their respective Subsidiaries pursuant to the Company and that its protection and maintenance constitutes a legitimate business interest merger described in Section 2(c)(i) hereof, shall directly or indirectly, engage in any of the Company, to be protected by Businesses within the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, Territory; provided, licensed and/or distributed to customers and clients in and throughout the United States however, that nothing contained herein shall prohibit NCIC or NPLP from (the “Territory”A) (to the extent the Company comes to operateowning, either directly or through indirectly, less than 5% of any class of voting securities of any company engaged in any of the engagement Businesses, unless such company would become a Subsidiary of NCIC or NPLP as a result of the acquisition of such voting securities, (B) directly or indirectly acquiring a business which engages in any of the Businesses or in any portion thereof if the assets of such competing business constitute 20% or less of the gross assets, on a historical cost basis, of a distributor larger business so acquired by NCIC or joint or co-venturerNPLP, or sell (C) acquiring a significant amount business that engages in any of the Businesses with the Territory if the assets of such business constitute more than 20%, but not more than 50% of the gross assets, on a historical cost basis, of a larger business so acquired by NCIC or NPLP provided that (1) NCIC or NPLP, as applicable, disposes of such competitive business within one (1) year of its products acquisition by NCIC or NPLP and services (2) NCIC or NPLP, as applicable, first offers to customers locatedNRFC in writing the right to acquire such competitive business before offering to sell such competitive business to a third party and may only sell such competitive business to another party if after thirty days (30) NRFC determines not to acquire such business, in areas other provided that, the terms of the sale to any third party may not be materially more favorable than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded terms offered to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customersNRFC.
(b) Executive hereby agrees For the Term of this Agreement, NCIC and covenants that he NPLP shall notnot and shall cause any Subsidiary or Affiliate of NCIC or NPLP not to solicit, without raid, entice, induce or contact, or attempt to solicit, raid, entice, induce or contact, any individual who currently is or at any time during the prior written consent Term shall be an Officer to do anything from which NCIC, NPLP and their respective Subsidiaries and Affiliates are restricted from doing by reason of the Companythis Agreement, directly including to terminate such Officer's employment with NRFC, NFRLP or indirectly, in any capacity whatsoever, including, without limitation, as their respective Subsidiaries or to become an employee, employer, consultant, principal, partner, shareholder, officer, director or employee of NCIC, NPLP or their respective Subsidiaries; and NCIC and NPLP shall not and shall cause any Subsidiary or Affiliate of NCIC or NPLP not to approach any such Officer for such purpose or authorize or participate in the taking of such actions by any other individual Person or representative capacity assist or participate with any such Person in taking such action.
(other than c) Nothing in this Agreement shall be interpreted as prohibiting a holder of less than two (2%) percent Person then engaged in any of the outstanding voting shares Businesses from (i) merging with NCIC or NPLP or any Subsidiary of any publicly held company)NCIC or NPLP, or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
provided that (1) Engagethe holders of NCIC or NPLP's outstanding equity interests prior to such merger hold, ownin their capacity as holders of equity interests of NCIC or NPLP, manageas applicable, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business less than 50% of the Company;
voting power of NCIC or NPLP's outstanding equity interests following such merger or, if NCIC or NPLP is not the surviving entity of such merger, the surviving entity's outstanding equity interests immediately following the merger, and (2) Recruitafter the consummation of such merger, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor (A) a majority of the Company to leave Board of NCIC, NPLP or the employment surviving entity, as applicable, shall consist of individuals other than Continuing Directors, (or independent contractor relationshipB) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer the co-chief executive officers of NCIC as of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to date hereof cease to do business or to reduce the amount of business which serve in such customer has customarily done or might do with the Companycapacity, or if any such customer elects to move its business to a person other than the Company, provide any services and (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Company.C)
Appears in 2 contracts
Sources: Non Competition Agreement (Northstar Realty), Non Competition Agreement (Northstar Realty)
Non-Competition and Non-Solicitation. (a) In further consideration of the compensation to be paid to Executive agrees and hereunder, Executive acknowledges that during the course of his employment with the Company he has become familiar with the Company’s trade secrets and with other Confidential Information that Executive has already received and will receive is valuable to concerning the Company and that its protection his services have been and maintenance constitutes a legitimate business interest shall be of special, unique and extraordinary value to the Company, to be protected by the non-competition restrictions set forth herein. and therefore, Executive agrees that, during the Term and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States for a period of six (6) months thereafter (the “TerritoryNoncompete Period”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall not, without the Company’s prior written consent of the Companyconsent, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, controljoin, be employed by, consult for, control or participate in, or be connected in any manner with the ownership, management, operation or control of, or be connected as a director, officer, employee, partner, consultant or otherwise with, any business or organization in the United States, Canada or Mexico that sells or markets golf equipment, apparel, accessories or services directly to consumers, whether through retail or direct marketing channels, including, but not limited to catalogs and the internet (a “Competitive Business”); provided, however, that nothing herein shall prohibit Executive from (i) being a passive owner of not more than 2% of the outstanding stock of any business class of a corporation which is publicly traded, so long as Executive has no active participation in competition with the business of such corporation; or (ii) becoming involved with a business or organization for which activities comprising a Competitive Business do not represent more than $10 million in revenues or more than 10% of such business or organization’s total revenues. If, at the Company;time of enforcement of this Article III, a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the parties agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law. Executive acknowledges that the restrictions contained in this Article III are reasonable and that he has reviewed the provisions of this Agreement with his legal counsel
(b) During the Term and for a period of two (2) Recruityears thereafter (the “Non-Solicit Period”), solicit Executive shall not directly or hire, indirectly through another person or entity (i) induce or attempt to recruit, solicit or hire, induce any employee, or independent contractor employee of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer employ of the Company, or in any way interfere with whom the relationship between the Company had significant contact during Executive’s employment by and any employee thereof, (ii) hire any person who was an employee of the Company at any time during the Term or (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade iii) induce or attempt to persuade induce any such customer customer, supplier, licensee, licensor, franchisee or other business relation of the Company to cease to do doing business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if in any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive way interfere with the business of the Company) for relationship between any such customer, supplier, licensee or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between business relation and the Company and any other party, (including, without limitation, making any supplier, distributor, co-venturer negative or joint venturer disparaging statements or communications regarding the Company).
(c) In the event of the Company to discontinue breach or reduce its business with a threatened breach by Executive of any of the provisions of this Section 3.3(c), the Company would suffer irreparable harm, and in addition and supplementary to other rights and remedies existing in its favor, the Company shall be entitled to specific performance and/or injunctive or otherwise interfere other equitable relief from a court of competent jurisdiction in order to enforce or prevent any way with the business violations of the Companyprovisions hereof (without posting a bond or other security). In addition, in the event of an alleged breach or violation by Executive of this Article III, the Noncompete Period and the Non-Solicit Period shall be tolled until such breach or violation has been duly cured.
Appears in 2 contracts
Sources: Employment Agreement (Golf Galaxy, Inc.), Employment Agreement (Golf Galaxy, Inc.)
Non-Competition and Non-Solicitation. (ai) Executive agrees As a condition to, and in further consideration of, the compensation and benefits being provided hereunder, (i) the Parties acknowledge and agree that the provision of Confidential Information, trade secrets and goodwill of the Company Group’s business are mutually agreed upon consideration for the purposes of the terms of this Section 6(c)(i) and (ii) Employee acknowledges that he has access to and shall become familiar with the Company Group’s trade secrets and with other Confidential Information that Executive has already received and will receive is valuable to concerning the Company Group, all of which items Employee has not previously been given and that Employee would not be given but for execution of this Agreement, and therefore, Employee agrees that, during the period beginning on the date hereof and ending twenty-four (24) months after the date on which Employee’s employment or other engagement with the Company or any of its protection and maintenance constitutes a legitimate business interest of the Company, to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States Subsidiaries is terminated for any reason (the “TerritoryRestricted Period”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall not, without the prior written consent of the Company, directly or indirectly, in any capacity whatsoeverincluding through another person, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director either for Employee or for any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of person, own any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, owninterest in, manage, operate, control, be employed by, consult for, participate in, consult with, render services for, permit Employee’s name to be used, be employed in an executive, managerial, administrative capacity by, or be connected in any manner engage in, any business engaged directly or indirectly in any business or entity competing with the ownershipbusinesses of the Company Group as such businesses exist or are in process during the period in which Employee is employed by the Company or any of its Subsidiaries, managementwithin the State of North Carolina and any other geographical area in which Employee engaged in such business or in which any of Employee’s clients or customers were located at any time during such period. For purposes of this Agreement, operation the term “participate” includes any direct or control indirect interest in any enterprise, whether as an officer, director, employee, partner, sole proprietor, agent, representative, independent contractor, seller, franchisor, franchisee, creditor or owner. Nothing herein shall prohibit Employee from being a passive owner of not more than 2% of the outstanding stock of any business class of a corporation which is publicly traded, so long as Employee has no active participation in competition with the business of the Company;such corporation.
(2ii) RecruitIn addition, solicit during the Restricted Period, Employee shall not directly or hire, indirectly through another person or entity (i) induce or attempt to recruit, solicit or hire, induce any employee, employee or independent contractor of the Company Group to leave the employment (employ of the Company Group, or independent contractor relationship) in any way interfere with the relationship between the Company Group and any employee thereof, whether (ii) hire any person who is an employee of or not any such employee service provider for the Company Group or independent contractor is party to an employment agreement;
(3iii) Attempt in any manner induce or attempt to solicit or accept from induce any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer licensee, licensor, or joint venturer franchisee of the Company to discontinue Group with whom Employee had contact or reduce its business with about whom Employee received Confidential Information while employed by the Company or the Company Group to cease or refrain from doing business with, or otherwise interfere modify adversely its relationship with, the Company Group, or in any way interfere with the business relationship between any such customer, supplier, or licensee and the Company Group.
(iii) Employee agrees that he shall not make, either publicly or privately, verbally or in writing, any false and derogatory, disparaging, or maliciously untruthful statements or communications regarding the Company Group or their employees. Notwithstanding the foregoing, nothing in this Agreement shall be construed as prohibiting or in any way limiting Employee from engaging in Protected Activities.
(iv) If, at the time of enforcement of Section 6, a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the Parties agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law. Employee acknowledges that the restrictions contained in this Section 6 are reasonable and that he has reviewed the provisions of this Agreement with his legal counsel.
(v) In addition, in the event of a breach or violation by Employee of this Section 6, the Restricted Period shall be automatically extended by the amount of time between the initial occurrence of the Companybreach or violation and when such breach or violation has been duly cured.
(vi) Employee acknowledges and agrees that Employee’s receipt of the consideration set forth in this Agreement, including but not limited to the severance payments and benefits set forth in Section 2, is expressly conditioned upon Employee’s compliance with the provisions of this Section 6. In the event of a breach or a threatened breach by Employee of any of the provisions of this Section 6, the Company Group would suffer irreparable harm, and in addition and supplementary to other rights and remedies existing in its favor, the Company Group shall be entitled to specific performance and/or injunctive or other equitable relief from a court of competent jurisdiction in order to enforce or prevent any violations of the provisions hereof (without posting a bond or other security). Further, in the event of a breach or a threatened breach by Employee of any of the provisions of this Section 6, the Company shall immediately cease payment of any outstanding severance payments or benefits to Employee and shall request immediate repayment of any severance payments or benefits already paid to Employee.
(vii) Employee acknowledges that Employee has been provided with at least five (5) days to consider the covenants in the Agreement, although Employee may execute the Agreement prior to the expiration of that five (5) day period. Employee further acknowledges that Employee has the right to consult with an attorney prior to executing the Agreement.
Appears in 2 contracts
Sources: Management Retention Agreement (Heron Therapeutics, Inc. /De/), Management Retention Agreement (Heron Therapeutics, Inc. /De/)
Non-Competition and Non-Solicitation. In order to protect the Company Entities’ Proprietary Information and good will, while I am employed by the Company and for a period of twelve (12) months following the termination of my employment for any reason, except as provided in the last two sentences of this Section 8, I agree that I will not directly or indirectly: (a) Executive agrees and acknowledges that perform the Confidential Information that Executive has already received and will receive is valuable to same or similar services in the Restricted Area (as defined below) for any Competitor (as defined below) as those I performed for the Company and that its protection and maintenance constitutes a legitimate business interest of Entities during my employment with the Company, to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
; (b) Executive hereby agrees engage in or become employed in any capacity by, or become an officer, director, agent, consultant, contractor, shareholder or partner of any partnership, corporation or entity that at the time of my engagement is engaged in, or is planning to engage in, the Business, unless I am engaged solely by a division or affiliate of such partnership, corporation or entity that does not engage in the Business and covenants that he shall notthe entity or division, without as applicable, which engages in the prior written consent Business represents no more than 10% of such entity’s (or, in case of an affiliate, the Companyentire controlled group’s) annual revenues and I am not involved, directly or indirectly, in any capacity whatsoeverplans to engage in the Business, includingor I am providing services to a portfolio company of a private equity fund which does not engage in the Business (even if the private equity fund has another portfolio company which engages in the Business; provided I provide no services to such other portfolio company or advise on the acquisition or purchase of any Competitor) or have a passive (no more than 5%) equity interest in a private equity or hedge fund that owns an entity engaged in or planning to be engaged in the Business as long as I do not provide services directly to such Business (“Carve-out”); (c) on behalf of a Competitor: (i) call upon, without limitationsolicit, as an employeecontact, employeror provide any services (or attempt to do any of the foregoing) for any Customer or Potential Customer of the Company Entities that I called upon, consultantsolicited, principalcontacted, partneror serviced for the Company Entities (or for Accenture but only with respect to a client or customer who continued to be a client or customer of the Company after the Closing) during my employment or, shareholderon or following my termination date, officerwithin the two years prior to my termination date; (ii) call upon, director solicit, contact, or provide any services (or attempt to do any of the foregoing) for any Customer or Potential Customer; (iii) call upon, solicit, or contact or provide any services to any vendor or supplier of the Company Entities who during my employment is a vendor or supplier of any of the Company Entities, or on or following my termination date, was a vendor or supplier of the Company Entities during the 24 month period prior to my termination date or about whom I had knowledge; or (iv) otherwise divert or take away (or attempt to do any of the foregoing) any business of the Company Entities to a Competitor of the Company Entities; or (d) undertake planning for or organization of a business competitive with the Company Entities’ Business. Notwithstanding the foregoing, nothing in this Section 8 shall be violated by actions taken in the good faith performance of my duties to the Company Entities or any other individual or representative capacity (other than a holder activities by me permitted by the Carve-out. I recognize and agree that as part of less than two (2%) percent of the outstanding voting shares of any publicly held company)my job duties and responsibilities, or whether on Executive's own behalf I will be providing services for or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner Company Entities that are coextensive with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor entire geographic scope of the Company to leave the employment (or independent contractor relationship) thereofEntities’ business, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer and that because of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business global nature and scope of these executive duties and responsibilities and because of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company global nature and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer scope of the Company Entities’ business and their focus on the Business, my performance of my duties and responsibilities is not tied to discontinue any specifically designated territory or reduce its business with the Company or otherwise interfere in any way with the business of the Companygeographic region.
Appears in 2 contracts
Sources: Employment Agreement (Duck Creek Technologies, Inc.), Employment Agreement (Duck Creek Technologies, Inc.)
Non-Competition and Non-Solicitation. (a) Executive The Employee agrees and acknowledges that the Confidential Information that Executive the Employee has already received and will receive is valuable to the Company Corporation and that its protection and maintenance constitutes a legitimate business interest of the CompanyCorporation, to be protected by the non-competition restrictions set forth herein. Executive The Employee agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executivethe Employee. Executive The Employee also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States Corporation’s business is conducted worldwide (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the CompanyCorporation, its affiliates and/or its clients or customers. The provisions of this Section 9 shall survive the termination of the Employee’s employment hereunder for a period of 3 months after the termination of Employee’s employment for whatever reason, and regardless of whether the termination is voluntary or involuntary, within the Territory.
(b) Executive The Employee hereby agrees and covenants that he shall not, not without the prior written consent of the CompanyCorporation, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than (i) as a holder of less than two five (25%) percent of the outstanding voting securities of a company whose shares of are traded on any publicly held companynational securities exchange or (ii) as a limited partner, passive minority interest holder in a venture capital fund, private equity fund or similar investment entity which holds or may hold an equity or debt position in portfolio companies that are competitive with the Corporation; provided however, that the Employee shall be precluded from serving as an operating partner, general partner, manager or governing board designee with respect to such portfolio companies), or whether on Executive's the Employee’s own behalf or on behalf of any other person or entity except for and with any entities in which Employee is currently affiliated or associated with or otherwise howsoever, during the Employment Period Term and thereafter to for a period of one (1) year after the extent described belowtermination of the Employee’s employment for whatever reason, and regardless whether the termination in voluntary or involuntary, within the Territory:.
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business Business of the Company;
(2) RecruitCorporation, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor as defined in the next sentence. “Business” shall mean mobile satellite products and services sector of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Companyglobal communications industry.
Appears in 2 contracts
Sources: Employment Agreement (Orbsat Corp), Employment Agreement (Orbsat Corp)
Non-Competition and Non-Solicitation. (a) The Executive agrees and acknowledges that the Confidential Information that the Executive has already received and will receive is valuable to the Company Parent and that its protection and maintenance constitutes a legitimate business interest of the CompanyParent, to be protected by the non-competition restrictions set forth herein. The Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on the Executive. The Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients Parent’s Business (as defined in and throughout the United States Section 13(b) (1) below) is conducted worldwide (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the CompanyParent, its affiliates and/or its clients or customers. The provisions of this Section 13 shall survive the termination of the Executive’s employment hereunder for the time periods specified below.
(b) The Executive hereby agrees and covenants that he shall not, not without the prior written consent of the CompanyParent, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than (i) as a holder of less than two (2%) percent of the outstanding voting securities of a company whose shares of are traded on any publicly held companynational securities exchange or (ii) as a limited partner, passive minority interest holder in a venture capital fund, private equity fund or similar investment entity which holds or may hold an equity or debt position in portfolio companies that are competitive with the Parent; provided however, that the Executive shall be precluded from serving as an operating partner, general partner, manager or governing board designee with respect to such portfolio companies), or whether on the Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period Term and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business Business of the Company;Parent, as defined in the next sentence. For purposes hereof, the Parent’s “Business” shall mean research, development, techniques and technology in any manner involving or related to regeneration of functionally polarized tissue by use of Leucine-rich repeat-containing G-protein coupled Receptor (LGR) expressing cells and any and all inventions, technology and trade secrets related thereto or a result of the services of Employee hereunder, as well as all activities that involve the making, use or licensing thereof.
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company Parent to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement, for the purpose of competing with the Business of the Parent;
(3) Attempt in any manner to solicit or accept from any customer of the CompanyParent, with whom the Company Executive had significant contact during Executive’s employment by the Company Parent (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company Parent with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the CompanyParent, or if any such customer elects to move its business to a person other than the CompanyParent, provide any services (of the kind or competitive with the business of the Company) Parent for such customer, or have any discussions regarding any such service with such customer, on behalf of such other personperson for the purpose of competing with the Business of the Parent; or
(4) Interfere with any relationship, contractual or otherwise, between the Company Parent and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company Parent, for the purpose of soliciting such other party to discontinue or reduce its business with the Company or otherwise interfere in any way Parent for the purpose of competing with the business Business of the CompanyParent. With respect to the activities described in Paragraphs (1), (2), (3) and (4) above, the restrictions of this Section 13(b) shall continue during the Term of this Agreement and for a period of two (2) years thereafter.
Appears in 2 contracts
Sources: Executive Employment Agreement (Majesco Entertainment Co), Executive Employment Agreement (Majesco Entertainment Co)
Non-Competition and Non-Solicitation. (a) The Executive agrees and acknowledges that the Confidential Information that the Executive has already received and will receive is valuable to the Company Company, its affiliates and/or its clients or customers, and that its protection and maintenance constitutes a legitimate business interest of the Company, its affiliates and/or its clients or customers to be protected by the non-competition restrictions set forth herein. The Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on the Executive. The Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “TerritoryGeographic Boundary”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the TerritoryGeographic Boundary, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers. The Executive also acknowledges that the business of the Company is the offering through its online marketplace of high quality new, overstock, close-out and refurbished brand name consumer merchandise (the “Business of the Company”).
(b) The Executive hereby agrees and covenants that he shall not, without the prior written consent of the Company, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two one percent (21%) percent of the outstanding voting shares of any publicly held company), or whether on the Executive's ’s own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period Executive’s employment with the Company and thereafter to for a period of one year following the extent described belowtermination of his employment for any reason, within whether voluntary or involuntary, in the TerritoryGeographic Boundary:
(1i) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business Business of the Company;
(2ii) Solicit, persuade or induce any Customer: to terminate, reduce or refrain from renewing, extending, or entering into contractual or other relationships with the Company or to become a customer of or enter into any contractual or other relationship with any other individual, person or entity for the purpose of purchasing competitive products or services; or
(iii) Recruit, solicit hire, induce, contact, divert or hiresolicit, or attempt to recruit, solicit induce, contact, divert or hiresolicit, any employee, or independent contractor employee of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Company.
Appears in 2 contracts
Sources: Employment Agreement (uBid.com Holdings, Inc.), Employment Agreement (uBid.com Holdings, Inc.)
Non-Competition and Non-Solicitation. (a) Executive 4.1 The Employee agrees and acknowledges undertakes that she will not, for so long as this Agreement is in effect and for a period of one (1) year thereafter (the Confidential Information that Executive has already received and will receive is valuable “Non-Competition Period”), compete or to assist others to compete, whether directly or indirectly, with the Company and that its protection and maintenance constitutes a legitimate business interest of the Company, as conducted prior to the date the Employee ceases to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided employed by the Company.
4.2 The Employee further agrees and undertakes that during the Non-Competition Period, its affiliates and/or its clients she will not directly or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (indirectly solicit any business which is similar to the extent the Company comes to operateCompany’s business from individuals or entities that are customers, either directly suppliers or through the engagement contractors of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, any of its affiliates and/or its clients subsidiaries or customers.
(b) Executive hereby agrees and covenants that he shall notaffiliates, without the prior written consent of the CompanyCEO.
4.3 The Employee further agrees and undertakes that during the Non-Competition Period, directly or indirectlywithout the prior written consent of the CEO, she will not offer to employ, in any capacity whatsoeverway directly or indirectly solicit or seek to obtain or achieve the employment by any business or entity of, includingemploy, without limitationany person employed by either the Company, as an employeeits subsidiaries, employeraffiliates, consultant, principal, partner, shareholder, officer, director or any other individual successors or representative capacity (other than a holder of less than two (2%) percent of assigns thereof.
4.4 The Parties hereto agree that the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during duration and area for which the Employment Period and thereafter covenants set forth in this Section 4 are to be effective are necessary to protect the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor legitimate interests of the Company and its development efforts and accordingly are reasonable, in terms of their geographical and temporal scope. In the event that any court determines that the time period and/or area are unreasonable and that such covenants are to leave that extent unenforceable, the employment (Parties hereto agree that such covenants shall remain in full force and effect for the greatest period of time and in the greatest geographical area that would not render them unenforceable. In addition, the Employee acknowledges and agrees that a breach of Sections 3, 4 or independent contractor relationship) thereof5 hereof, whether or not any such employee or independent contractor is party may cause irreparable harm to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom its subsidiaries, and/or affiliates and that the Company had significant contact during Executiveshall be entitled to specific performance of this Agreement or an injunction without proof of special damages, together with the costs and reasonable attorney’s employment fees and disbursements incurred by the Company (whether in enforcing its rights under this Agreement Sections 3, 4 or otherwise)5. The Employee acknowledges that the compensation and benefits she receives hereunder are paid, business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Companyinter alia, or if any such customer elects to move its business to a person other than the Companyas consideration for her undertakings contained in Sections 3, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company 4 and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Company5.
Appears in 1 contract
Sources: Employment Agreement (Protalix BioTherapeutics, Inc.)
Non-Competition and Non-Solicitation. (a) Executive agrees Each of ADR and acknowledges that Germinario agree that, in consideration of the Confidential Information that Executive has already received and will receive is valuable options granted pursuant to the Company and that its protection and maintenance constitutes a legitimate business interest of the CompanyOption Agreement, to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areasNon-Competition Period (as defined below), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall not, without the prior written consent of the Company, they shall not: (i) be a principal, manager, agent, consultant officer, director or employee of, or, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity own more than one (other than a holder of less than two (21%) percent of any class or series of equity securities in, any partnership, corporation or other entity, except for Germinario's relationship with ADR, which, now or at such time, has material operations which are engaged in any business activity competitive (directly or indirectly) with the outstanding voting shares business of the Company, and (ii) on behalf of any publicly held companycompeting entity, directly or indirectly, have any dealings or contact with any suppliers or customers of the Company; provided, however, that nothing contained herein shall prohibit ADR from continuing relationships it had with suppliers or customers of the Company prior to the effective date of this Agreement so long as such relationships do not otherwise violate the provisions of this Agreement.
(b) During the Non-Competition Period, each of ADR and Germinario agrees that, without the prior written consent of the Company (and other than on behalf of the Company), or whether they shall not, on Executive's his own behalf or on behalf of any other person or entity entity, directly or otherwise howsoever, indirectly hire or solicit the employment of any employee who has been employed by the Company at any time during the Employment Period and thereafter to the extent described below, within the Territory:six (6) months immediately preceding such date of hiring or solicitation.
(1c) EngageADR, ownGerminario and the Company agree that the covenants of noncompetition and non-solicitation are reasonable covenants under the circumstances, manageand further agree that if, operate, control, be employed by, consult for, participate in, or be connected in the opinion of any court of competent jurisdiction such covenants are not reasonable in any manner with respect, such court shall have the ownershipright, management, operation power and authority to excise or control modify such provision or provisions of these covenants as the court determines are not reasonable and to enforce the remainder of these covenants as so amended. ADR and Germinario agree that any business in competition with the business breach of the covenants contained in this Section 8 would irreparably injure the Company;
(2) Recruit. Accordingly, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of ADR and Germinario agree that the Company, with whom in addition to pursuing any other remedies it may have in law or in equity, may obtain an injunction against ADR and Gerninario from any court having jurisdiction over the Company had significant contact during Executive’s employment by matter, restraining any further violation of this Section 8.
(d) The provisions of this Section 8 shall extend for the Company (whether under Term and survive the termination of this Agreement or otherwise), business of for six months from the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf date of such other person; or
termination (4) Interfere with any relationship, contractual or otherwise, between herein referred to as the Company and any other party, including, without limitation, any supplier, distributor, co"Non-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the CompanyCompetition Period").
Appears in 1 contract
Non-Competition and Non-Solicitation. During the Restricted Period, the Restricted Person shall not, and shall cause its Affiliates not to, directly or indirectly through any Person or contractual arrangement:
(a) Executive agrees and acknowledges manage, operate, advise or consult for, render services to, run, control or externally manage any Restricted Business (other than any real estate held or owned by the Restricted Person in his personal capacity or any trust controlled by such individual whose beneficiaries are members of his family whether acquired prior to or after the date hereof) in the Restricted Territory; provided, however, that the Confidential Information restrictions contained in this Agreement shall in no way be deemed to restrict the Restricted Person or its Affiliates from (i) serving as an employee, officer, director or other service provider of any GNL Group Company; (ii) owning, directly or indirectly (x) up to 9.9 % of any class of securities of any public entity or (y) any passive investment in any entity that Executive has already received and will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest Restricted Person does not control; (iii) investing equity of no more than the Company, to be protected by the non-competition restrictions amount set forth herein. Executive agrees on Schedule 1.02(a) of this Agreement in real estate partnerships that own mixed use and acknowledges shopping center real estate; or (iv) working as an employee or acting as a consultant or contractor to a Competitive Entity; provided, that the non-competition restrictions set forth herein are reasonable and necessary and do Restricted Person does not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturerpersonally engage in, or sell a significant amount of its products and provide any services to customers located, in areas other than the United States during the term of the Employment Periodprimarily for use in, the definition of Territory shall be automatically expanded to cover such other areas), Restricted Business and that the TerritoryRestricted Person performs services exclusively in a division, scope subsidiary or affiliated entity of prohibited competition, and time duration set forth the Competitive Entity that does not primarily engage in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.Restricted Business;
(b) Executive hereby agrees employ, hire, enter into an agency or consulting relationship with or recruit or solicit for employment any employee of a GNL Group Company (“Restricted Employees”); provided, that the foregoing shall not apply to (i) Restricted Employees who ceased to be employed by a GNL Group Company at least ninety (90) days prior to any solicitation by, and covenants that he the commencement of any discussions with, the Restricted Person or any of its Affiliates; and (ii) any general solicitations not targeted at Restricted Employees (including through the use of recruiting firms or advertisements in any newspaper, magazine, trade publication, electronic medium or other media) or any hiring as a result thereof; provided, further, that, notwithstanding the foregoing, the Restricted Person shall not, without the prior written consent of the Companyand shall cause its Affiliates not to, directly or indirectly, (x) solicit or induce E▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇. or J▇▇▇▇ ▇▇▇▇▇▇ to leave the employ of GNL or (y) employ, hire or enter into a consulting arrangement with them, in any capacity whatsoevereach case, includingduring the term of such individual’s Executive Employment Agreement (as defined in the Merger Agreement); and provided, without limitationfurther, as an employee, employer, consultant, principal, partner, shareholder, officer, director notwithstanding this Agreement or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter agreement to the extent described belowcontrary, within the Territory:
(1it is acknowledged and agreed that E▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇. and N▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ are each direct or indirect members, owners, directors or officers of AR Global Investments, LLC and certain other entities that do not engage in activities that are violative of Section 1.02(a) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), and that such individuals shall be permitted to continue to engage in such business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other personactivities; or
(4c) Interfere with encourage any relationshipcustomer or supplier who is, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer as of the Closing Date, a customer or supplier of any GNL Group Company to discontinue terminate or reduce its business adversely modify any relationship with the Company or otherwise interfere in any way with the business of the a GNL Group Company.
Appears in 1 contract
Sources: Confidentiality, Non Competition and Non Solicitation Agreement (Global Net Lease, Inc.)
Non-Competition and Non-Solicitation. (a) The Executive agrees and acknowledges that the Company has invested substantial time, money and resources in the development and retention of its Inventions, Confidential Information (including trade secrets), customers, accounts and business partners, and further acknowledges that during the course of the Executive's employment with the Company the Executive has already received had and will receive is valuable have access to the Company Company's Inventions and that its protection Confidential Information (including trade secrets), and maintenance constitutes a legitimate will be introduced to existing and prospective customers, accounts and business interest partners of the Company. The Executive acknowledges and agrees that any and all "goodwill" associated with any existing or prospective customer, account or business partner belongs exclusively to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients including, but not limited to, any goodwill created as a result of direct or customers are indirect contacts or are intended to be soldrelationships between the Executive and any existing or prospective customers, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly accounts or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Periodbusiness partners. Additionally, the definition of Territory shall be automatically expanded to cover such other areas)parties acknowledge and agree that Executive possesses skills that are special, unique or extraordinary and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests ofCompany depends upon his use of such skills on its behalf. In recognition of this, the Company, its affiliates and/or its clients or customers.Executive covenants and agrees that:
(ba) During the Executive's employment with the Company and for a period of one (1) year thereafter, the Executive hereby agrees and covenants that he shall may not, without the prior written consent of the Board (whether as an employee, agent, servant, owner, partner, consultant, independent contractor, representative, stockholder or in any other capacity whatsoever): (i) conduct any business with any customer of the Company on behalf of any entity or person other than the Company (including the Executive) if such business is competitive with the products or services offered by the Company, or (ii) perform any work competitive in any way with the products or services offered or planned to be brought to market by the Company during the Term or within one (1) year thereafter, on behalf of any entity or person other than the Company (including the Executive), provided that nothing herein shall prohibit the Executive from owning up to 5% of the securities of any company or venture fund, mutual fund or other similar investment vehicle as to which the Executive does not control or influence investment decisions, and provided that nothing herein shall prohibit the Executive from making other personal investments that otherwise might violate this sub-Section with the prior approval of the Board.
(b) During the Executive's employment with the Company (except as requested in connection with the performance of the Executive's duties and responsibilities hereunder) and for a period of one (1) year thereafter, the Executive may not entice, solicit or encourage any Company employee to leave the employ of the Company or any independent contractor to sever its engagement with the Company, absent prior written consent to do so from the Board.
(c) During the Executive's employment with the Company (except in the good faith performance of the Executive's duties hereunder) and for a period of one (1) year thereafter, the Executive may not, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruitentice, solicit or hire, encourage any customer or attempt to recruit, solicit or hire, any employee, or independent contractor prospective customer of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), cease doing business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business relationship with the Company or otherwise interfere in any way refrain from establishing or expanding a relationship with the business of the Company.
Appears in 1 contract
Non-Competition and Non-Solicitation. In consideration of Parent's and Acquisition Corp.'s agreement to enter into this Agreement and the Acquisition Agreement, and as a condition thereto, each Principal Shareholder covenants and agrees as follows:
(a) Executive Each Principal Shareholder hereby acknowledges that it is or may be familiar with the Companies' trade secrets and with other confidential information and such Principal Shareholder acknowledges and agrees that Parent, Acquisition Corp., the Company and their respective Subsidiaries would be irreparably damaged if it were to provide services to or otherwise participate in the business of any person competing with the Company or any of its Subsidiaries in a similar business and that any such competition by such Principal Shareholder would result in a significant loss of goodwill by Parent, Acquisition Corp., the Company and their Subsidiaries.
(b) From the date hereof through and including the date eighteen months after the Offer Payment Date, no Principal Shareholder or any of its Affiliates shall, directly or indirectly, own any interest in, manage, control, participate in (whether as an officer, director, employee, partner, agent, representative or otherwise), consult with, render services for, or in any other manner engage, anywhere in the Restricted Territories in any business engaged directly or indirectly the ownership or operation of retail clothing stores or other sales outlets providing similar clothing goods and services as those provided by the Company and its Subsidiaries; provided that nothing herein shall prohibit (x) such Principal Shareholder or any of its Affiliates from being a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded so long as none of such Persons has any active participation in the business of such corporation or (y) Jeffrey A. Goodfriend from owning any interest in, managing, o▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ipating in, consulting with, rendering services for, or engaging in any business; provided that during such eighteen-month period Jeffrey A. Goodfriend shall not, directly or indirectly, own o▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ over any retail clothing stores or other sales outlets providing similar clothing goods and services as those provided by the Company and its Subsidiaries with more than 20 stores. From the date hereof through and including the third anniversary of the Offer Payment Date, no Principal Shareholder or any of its Affiliates shall, directly or indirectly, use the name "Goodfriend," "Goody's," or any derivative thereof or Robert M. ▇▇▇▇▇▇▇▇▇d's or his immediate family members' names ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇usiness. From and after the date hereof, no Principal Shareholder shall, directly or indirectly, use the name "Goody's" in any business in the clothing industry so long as the Company or any of its affiliates, successors or assigns is then using such name. For purposes of this Agreement, "Restricted Territories" shall mean the States of Alabama, Arizona, Delaware, Florida, Georgia, Iowa, Illinois, Indiana, Kentucky, Kansas, Louisiana, Missouri, Mississippi, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Virginia, West Virginia and any other state the Company or any of its Subsidiaries currently proposes to conduct business. Each Principal Shareholder acknowledges that the Confidential Information that Executive Company's and its Subsidiaries' businesses has already received and will receive been conducted or is valuable presently proposed to be conducted throughout the Company Restricted Territories and that its protection and maintenance constitutes a legitimate business interest of the Company, to be protected by the non-competition geographic restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below above are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall not, without the prior written consent of the Company, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the CompanySubsidiaries' businesses.
Appears in 1 contract
Non-Competition and Non-Solicitation. (a) The Executive agrees and acknowledges that the Confidential Information that the Executive has already received and will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest of the Company, to be protected by the non-competition restrictions set forth herein. The Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on the Executive. The Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients ’s Business (as defined in and throughout the United States Section 14(b)(1) below) is conducted worldwide (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers. The provisions of this Section 14 shall survive the termination of the Executive’s employment hereunder for the time periods specified below.
(b) The Executive hereby agrees and covenants that he shall not, not without the prior written consent of the Company, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than (i) as a holder of less than two (2%) percent of the outstanding voting securities of a Company whose shares of are traded on any publicly held companynational securities exchange or (ii) as a limited partner, passive minority interest holder in a venture capital fund, private equity fund or similar investment entity which holds or may hold an equity or debt position in portfolio companies that are competitive with the Company; provided however, that the Executive shall be precluded from serving as an operating partner, general partner, manager or governing board designee with respect to such portfolio companies), or whether on the Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and the Separation Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business Business of the Company;, as defined in the next sentence. The Company’s Business shall be (i) the commercialization, development and enforcement of on-line mapping intellectual property assets, including the acquisition and development of patents through internal or external research and development, the acquisition of existing rights to intellectual property through acquisitions of already issued patents and pending Video DriveBy and on-line mapping patent applications, both in the United States and abroad and the development of products and processes associated with the intellectual property and the license of the intellectual property to others seeking to develop products or processes or whose products or processes infringe the Company’s intellectual property rights through legal processes and (ii) the commercialization, development and enforcement of intellectual property rights in any other industry or market in which the Company has acquired intellectual property assets during Executive’s employment with the Company.
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement, for the purpose of competing with the Business of the Company;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company Executive had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) Company for such customer, or have any discussions regarding any such service with such customer, on behalf of such other personperson for the purpose of competing with the Business of the Company; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company Company, for the purpose of soliciting such other party to discontinue or reduce its business with the Company or otherwise interfere in any way for the purpose of competing with the business Business of the Company. With respect to the activities described in Paragraphs (1), (2), (3) and (4) above, the restrictions of this Section 14(b) shall continue during the Employment Period and for a period of three (3) years thereafter.
Appears in 1 contract
Sources: Executive Employment Agreement (California Gold Corp.)
Non-Competition and Non-Solicitation. (a) Executive agrees Each Stockholder covenants that, commencing on the Closing Date and acknowledges that ending on the Confidential Information that Executive has already received and will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest third anniversary of the Company, to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States Closing Date (the “TerritoryNoncompetition Period”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he each Stockholder shall not, without the prior written consent of the Companyand it shall cause its Affiliates not to, engage in, directly or indirectly, in any capacity whatsoevercapacity, includingor have any direct or indirect ownership interest in (other than as a holder of no more than 2% of the stock of a company listed on a recognized stock exchange), without limitationor permit any Stockholder’s or any such Affiliate’s name to be used in connection with, any business anywhere in the world which is engaged, either directly or indirectly, in the business of developing, manufacturing, marketing or selling any products or equipment or providing services which are competitive with products or equipment manufactured, marketed, sold or under development by, or services provided by, the Company or any of its Subsidiaries (the “Restricted Business”). It is recognized that the Restricted Business is expected to be conducted throughout the world and that more narrow geographical limitations of any nature on this non-competition covenant (and the non-solicitation covenants set forth in Sections 7.10(b) and (c)) are therefore not appropriate.
(b) Each Stockholder covenants that, during the Noncompetition Period, each Stockholder shall not, and it shall cause its Affiliates not to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Company or any of its Subsidiaries or potential clients or customers of the Company or any of its Subsidiaries for purposes of diverting their business or services from the Company or any of its Subsidiaries.
(c) Each Stockholder covenants that, during the Noncompetition Period, it shall not, and it shall cause its Affiliates not to, solicit the employment or engagement of services of any person who is or was employed as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, consultant or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company or any of its Subsidiaries during such period on a full- or part-time basis.
(whether d) Each Stockholder acknowledges that the restrictions contained in this Section 7.10 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated hereby. Each Stockholder acknowledges that any violation of this Section 7.10 will result in irreparable injury to Buyer and agrees that Buyer shall be entitled to preliminary and permanent injunctive relief, without the necessity of proving actual damages, as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of this Section 7.10, which rights shall be cumulative and in addition to any other rights or remedies to which Buyer may be entitled. Without limiting the generality of the foregoing, the Noncompetition Period shall be extended for an additional period equal to any period during which any Stockholder or any Affiliate is in breach of its obligations under this Agreement Section 7.10.
(e) In the event that any covenant contained in this Section 7.10 should ever be adjudicated to exceed the time, geographic, product or otherwise)service, business or other limitations permitted by applicable law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable law. The covenants contained in this Section 7.10 and each provision thereof are severable and distinct covenants and provisions. The invalidity or unenforceability of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business covenant or to reduce provision as written shall not invalidate or render unenforceable the amount of business which such customer has customarily done remaining covenants or might do with the Companyprovisions hereof, or if and any such customer elects to move its business to a person other than the Company, provide invalidity or unenforceability in any services (of the kind jurisdiction shall not invalidate or competitive with the business of the Company) for render unenforceable such customer, covenant or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and provision in any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Companyjurisdiction.
Appears in 1 contract
Sources: Stock Purchase Agreement (Wave2Wave Communications, Inc.)
Non-Competition and Non-Solicitation. (a) a. The Executive agrees and acknowledges that the Confidential Information that the Executive has already received and will receive is valuable to The Company and the Company and that its protection and maintenance constitutes a legitimate business interest of The Company and the Company, to be protected by the non-non competition restrictions set forth herein. The Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on the Executive. The Executive also acknowledges that the products Company's and services developed or provided by the The Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States 's business is conducted worldwide (the “"Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas"), and that the Territory, scope of prohibited competition, and time duration set forth in the non-non competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers. The provisions of this Section 9 shall survive the termination of the Executive's employment hereunder for the time periods specified below.
(b) b. The Executive hereby agrees and covenants that he shall not, not without the prior written consent of the Company, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than (i) as a holder of less than two (2%) percent of the outstanding voting securities of a company whose shares of are traded on any publicly held companynational securities exchange or (ii) as a limited partner or passive minority interest holder in a venture capital fund, private equity fund or similar investment entity which holds or may hold an equity or debt position in portfolio companies that are competitive with the Company or the Company; provided however, that the Executive shall be precluded from serving as an operating partner, general partner, manager or governing board designee with respect to such portfolio companies), or whether on the Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period Term and thereafter to the extent described below, within the Territory:
(1) i. Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business Business of the Company, as defined in the next sentence. For purposes hereof, the term "Business" shall mean the sales and service of satellite voice and data equipment;
(2) ii. Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement, for the purpose of competing with the Business of the Company;
(3) iii. Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company Executive had significant contact during Executive’s 's employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business Business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business Business of the Company) Company for such customer, or have any ·discussions regarding any such service with such customer, on behalf of such other personperson for the purpose of competing with the Business of the Company; or
(4) iv. Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company Company, for the purpose of soliciting such other party to discontinue or reduce its business with the Company or otherwise interfere in any way for the purpose of competing with the business Business of the Company. With respect to the activities described in subparagraphs (1), (2), (3) and (4) above, the restrictions of this Section 9 shall continue during the Term hereof and, upon termination of the Executive's employment pursuant to Section 5 (other than pursuant to Section 5(a)(v), 5(a)(vii), or 5(a)(viii)), for a period of one (I) year thereafter.
Appears in 1 contract
Sources: Executive Employment Agreement (Orbital Tracking Corp.)
Non-Competition and Non-Solicitation. (a) Executive agrees As an inducement to Buyer to enter into this agreement and acknowledges to consummate the transactions contemplated hereby, Sellers agree that for a period of two years after the Confidential Information Closing Date (the "Restricted Period"), Sellers shall not, directly or indirectly, (i) engage in any business that Executive has already received is competitive with the New York City Business for their own account, (ii) render any services which constitute engaging in any business which is competitive with the New York City Business in any capacity to any person or entity, or (iii) own any equity interest in any person which is engaged in any business which is competitive with the New York City Business; provided, however, that Sellers may (A) own, directly or indirectly, solely as a passive investment, securities of any person or entity which are traded on any national securities exchange or Nasdaq, if Sellers are not a controlling person of, or member of a group which controls, such person, and will receive is valuable does not, directly or indirectly, own five percent or more of any class of securities of such person and (B) continue to conduct the business of P.T. Express or Atlantic Freight in the manner, and in the geographic area, conducted prior to the Company and that its protection and maintenance constitutes a legitimate business interest date of the Company, to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customersthis agreement.
(b) Executive hereby agrees and covenants that he During the Restricted Period, Sellers shall not, without the prior written consent of the Company, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hire, encourage any current employee or attempt to recruit, solicit or hire, any employee, or independent contractor officer of the Company Buyer to leave the employment (of Buyer, or independent contractor relationship) thereof, whether hire any current or not any such former employee or independent contractor is party to an employment agreement;officer of Buyer, including any former employees of Sellers that are hired by Buyer after the Closing Date.
(3c) Attempt If any provision contained in section 6.11 shall for any reason be held invalid, illegal or unenforceable in any manner to solicit respect, such invalidity, illegality or accept from unenforceability shall not affect any customer other provisions of such section, but such section shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. It is the intention of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business parties that if any of the kind restrictions or competitive with the business done by the Company with such customer covenants contained in this section 6.11 is held to cover a geographic area or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount be for a length of business time which such customer has customarily done or might do with the Companyis not permitted by applicable law, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with construed to be too broad or to any extent invalid, such provision shall not be construed to be null, void and of no effect, but to the business extent such provision would be invalid or unenforceable under applicable law, a court of competent jurisdiction shall construe and interpret or reform such section to provide for a covenant having the Companymaximum enforceable geographic area, time period and other provisions (not greater than those contained herein) as shall be valid and enforceable under such applicable law. Sellers acknowledge that Buyer would be irreparably harmed by any breach of section 6.11 and that there would be no adequate remedy at law or in damages to compensate Buyer for any such breach. Sellers agree that Buyer shall be entitled to injunctive relief requiring specific performance by Sellers of this section, and consents to the entry thereof, without bond.
Appears in 1 contract
Sources: Asset Purchase Agreement (Dispatch Management Services Corp)
Non-Competition and Non-Solicitation. (a) Executive 4.1. The Employee agrees and acknowledges undertakes that he will not, for so long as (i) this Agreement is in effect, or (ii) he serves as a member of the Confidential Information that Executive has already received Board of Directors and will receive is valuable for a period of two (2) years after the later of the above lapses for whatever reason (the “Non-Competition Period”), compete or to assist others to compete, whether directly or indirectly, with the Company and that its protection and maintenance constitutes a legitimate business interest of the Company, as currently conducted and as conducted and/or proposed to be protected by conducted during the nonNon-competition restrictions set forth hereinCompetition Period.
4.2. Executive The Employee further agrees and acknowledges undertakes that during the nonNon-competition restrictions set forth herein Competition Period, he will not directly or indirectly solicit any business which is similar to the Company’s business from individuals or entities that are reasonable and necessary and do not impose undue hardship customers, suppliers or burdens on Executive. Executive also acknowledges that the products and services developed or provided by contractors of the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount any of its products and services to customers located, in areas other than the United States subsidiaries or affiliates during the term of the Employment Non-Competition Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall not, without the prior written consent of the Company’s Board of Directors.
4.3. The Employee further agrees and undertakes that during the Non-Competition Period, directly or indirectlywithout the prior written consent of the Company’s Board of Directors, he will not offer to employ, in any capacity whatsoeverway directly or indirectly solicit or seek to obtain or achieve the employment by any business or entity of, includingand/or during the term hereof, without limitationemploy, as an employeeany person employed by either the Company, employerits subsidiaries, consultantaffiliates, principal, partner, shareholder, officer, director or any other individual successors or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, assigns thereof during the Employment Period Non-Competition Period.
4.4. The Parties hereto agree that the duration and thereafter area for which the covenants set forth in this Section 4 are to be effective are necessary to protect the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor legitimate interests of the Company and its development efforts and accordingly are reasonable, in terms of their geographical and temporal scope. In the event that any court determines that the time period and/or area are unreasonable and that such covenants are to leave that extent unenforceable, the employment (Parties hereto agree that such covenants shall remain in full force and effect for the greatest period of time and in the greatest geographical area that would not render them unenforceable. In addition, the Employee acknowledges and agrees that a breach of Sections 3, 4 or independent contractor relationship) thereof5 hereof, whether or not any such employee or independent contractor is party shall cause irreparable harm to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom its subsidiaries, and/or affiliates and that the Company had significant contact during Executiveshall be entitled to specific performance of this Agreement or an injunction without proof of special damages, together with the costs and reasonable attorney’s employment fees and disbursements incurred by the Company (whether in enforcing its rights under this Agreement Sections 3, 4 or otherwise)5. The Employee acknowledges that the compensation and benefits he receives hereunder are paid, business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Companyinter alia, or if any such customer elects to move its business to a person other than the Companyas consideration for his undertakings contained in Sections 3, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company 4 and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Company5.
Appears in 1 contract
Non-Competition and Non-Solicitation. (a) Executive agrees and acknowledges that For the Confidential Information that Executive has already received and will receive is valuable Term of this Agreement, none of (i) NCIC, (ii) NPLP, (iii) any Subsidiary of NCIC or NPLP, or (iv) any successor or assign of NCIC or NPLP or their respective Subsidiaries, if such successor or assign continues to the Company and that its protection and maintenance constitutes be a legitimate business interest Subsidiary of NCIC or NPLP or their respective Subsidiaries, respectively, shall directly or indirectly, engage in any of the Company, to be protected by Businesses within the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, Territory; provided, licensed and/or distributed to customers and clients in and throughout the United States however, that nothing contained herein shall prohibit NCIC or NPLP from (the “Territory”A) (to the extent the Company comes to operateowning, either directly or through indirectly, less than 5% of any class of voting securities of any company engaged in any of the engagement Businesses, unless such company would become a Subsidiary of NCIC or NPLP as a result of the acquisition of such voting securities, (B) directly or indirectly acquiring a business which engages in any of the Businesses or in any portion thereof if the assets of such competing business constitute 20% or less of the gross assets, on a historical cost basis, of a distributor larger business so acquired by NCIC or joint or co-venturerNPLP, or sell (C) acquiring a significant amount business that engages in any of the Businesses with the Territory if the assets of such business constitute more than 20%, but not more than 50% of the gross assets, on a historical cost basis, of a larger business so acquired by NCIC or NPLP provided that (1) NCIC or NPLP, as applicable, disposes of such competitive business within one (1) year of its products acquisition by NCIC or NPLP and services (2) NCIC or NPLP, as applicable, first offers to customers locatedNRFC in writing the right to acquire such competitive business before offering to sell such competitive business to a third party and may only sell such competitive business to another party if after thirty days (30) NRFC determines not to acquire such business, in areas other provided that, the terms of the sale to any third party may not be materially more favorable than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded terms offered to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customersNRFC.
(b) Executive hereby agrees For the Term of this Agreement, NCIC and covenants that he NPLP shall notnot and shall cause any Subsidiary or Affiliate of NCIC or NPLP not to solicit, without raid, entice, induce or contact, or attempt to solicit, raid, entice, induce or contact, any individual who currently is or at any time during the prior written consent Term shall be an Officer to do anything from which NCIC, NPLP and their respective Subsidiaries and Affiliates are restricted from doing by reason of the Companythis Agreement, directly including to terminate such Officer's employment with NRFC, NFRLP or indirectly, in any capacity whatsoever, including, without limitation, as their respective Subsidiaries or to become an employee, employer, consultant, principal, partner, shareholder, officer, director or employee of NCIC, NPLP or their respective Subsidiaries; and NCIC and NPLP shall not and shall cause any Subsidiary or Affiliate of NCIC or NPLP not to approach any such Officer for such purpose or authorize or participate in the taking of such actions by any other individual Person or representative capacity assist or participate with any such Person in taking such action.
(other than c) Nothing in this Agreement shall be interpreted as prohibiting a holder of less than two (2%) percent Person then engaged in any of the outstanding voting shares Businesses from (i) merging with NCIC or NPLP or any Subsidiary of any publicly held company)NCIC or NPLP, or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
provided that (1) Engagethe holders of NCIC or NPLP's securities prior to the merger hold, ownin their capacity as holders of equity interests of NCIC or NPLP, manageless than 50% of the voting power of NCIC or NPLP following the merger or, operateif NCIC or NPLP is not the surviving entity, controlthe surviving entity immediately following the merger, be employed byand (2) after the consummation of such merger, consult for(A) a majority of the Board of NCIC, participate inNPLP or the surviving entity, or be connected as applicable, shall consist of individuals other than Continuing Directors and (B) the co-chief executive officers of NCIC as of the date hereof cease to serve in any manner with the ownershipsuch capacity and (ii) thereafter, management, operation or control of any carrying on its business in competition with NRFC or NRFLP within the business of the Company;
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the CompanyTerritory.
Appears in 1 contract
Non-Competition and Non-Solicitation. (a) Because of the nature of the Company’s business, and because, as a result of his employment with the Company, the Executive agrees has been and will continue to be exposed to proprietary information, the Executive acknowledges that the Confidential Information Company would sustain grievous harm in the event that Executive has already received and will receive is valuable he were to disclose proprietary information, engage in business activities that compete with the Business, appropriate or divert business or customers of the Company and or its affiliates and/or induce employees or consultants of the Company or its affiliates to leave the employment of the Company or its affiliates. The Executive acknowledges that its protection and maintenance constitutes the Company has a legitimate business interest in protecting itself from the aforementioned harm and in the protection and maintenance of the Companyproprietary information and of the good will and customer relationships of the Company and its affiliates. Therefore, the Executive hereby agrees and covenants to be protected bound by the non-competition and non-solicitation restrictions set forth herein. herein below, which restrictions the Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on the Executive. .
a. The Executive also acknowledges that agrees that, during his employment with the products Company and services developed or provided by for a period of one (1) year following the termination of his employment with the Company, its he and his affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either shall not directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall not, without the prior written consent of the Company, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, indirectly own, manage, operate, control, be employed by, consult for, be a shareholder of, be an officer of, participate in, contract with or be connected in any capacity or any manner with the ownershipany person or entity whose business activities directly or indirectly (whether through related persons, management, operation entities or control of any business in competition otherwise) compete with the business Company anywhere, including but not limited to, the People’s Republic of China and the United States, in which the Company or its affiliates conducts its business; provided, however, that the Executive shall not be prevented from owning an interest in a publicly traded company so long as the fair market value of such interest at the date of acquisition is less than US$1,000,000.
b. The Executive agrees that during the period of his employment with the Company and for a period of one(1) year following the termination of his employment with the Company;
(2) Recruit, solicit for any reason, he will not, anywhere, including but not limited to, the People’s Republic of China and the United States, in which theCompany or hireits affiliates conducts its business, directly or indirectly recruit, induce, divert, supervise, employ, manage, hire or entice, or attempt cause to recruitbe recruited, solicit induced, diverted, supervised, employed, managed, hired or hireenticed, any employee, consultant or independent contractor of the Company or its affiliates to leave or terminate the employment (or independent contractor relationship) other relationship thereof, whether or not for any such employee or independent contractor is party to an reason.
c. The Executive agrees that during the period of his employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s and for a period of one(1) year following the termination of his employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, he will not, anywhere, including but not limited to, the People’s Republic of China and the United States, in which the Company or if its affiliates conducts its business, directly or indirectly appropriate, call on, induce, divert or solicit, or assist another to appropriate, call on, induce, divert or solicit any such actual or potential business or customer elects away from the Company or its affiliates, or attempt to move its business to a person other than the Company, provide do any services (of the kind or competitive with the business of the Company) for such customerforegoing, or have otherwise induce or attempt to induce any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual actual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer potential business or joint venturer customer of the Company or its affiliates, to discontinue terminate or reduce adversely modify its relationship with the Company or its affiliates, or to enter into a relationship with or conduct business with the Company or otherwise interfere its affiliates, which actual or potential business or customer the Executive was involved with or had a relationship with or whose identity became known to the Executive in any way connection with the business of Executive’s employment with the Company.
d. If any of the restrictive covenants set forth in Sections 13(a), (b) and (c) herein is held to be invalid, illegal or unenforceable (in whole or in part), such restrictive covenant shall be deemed modified to the extent, but only to the extent, of such invalidity, illegality or unenforceability, and a court of competent jurisdiction shall have the power to modify, any such restrictive covenant to the extent necessary to render such provision enforceable, and the remaining restrictive covenant shall not be affected thereby.
e. In the event of a violation of any of the restrictive covenants set forth in Sections 13(a), (b) and (c) herein, if the Executive is prevented by a court, arbitrator or other judicial body from committing any further violation, whether by a temporary restraining order, injunction or otherwise, the time periods set forth in Sections 13(a), (b) and (c) herein shall be computed by commencing the periods on the date of the order of such court, arbitrator or other judicial body and continuing from that date for the full period provided.
f. The Executive shall have the right to request a waiver of all or part of the restrictive covenants contained in Sections 13(a), (b) and (c) herein by providing the Board of Directors or the Compensation Committee with a written request for such waiver that contains all relevant details. The Board of Directors or the Compensation Committee may, in its sole discretion, waive all or part of the restrictive covenants contained in Sections 13(a), (b) and (c) herein on such terms and conditions, and to such extent, as it, in its sole discretion, deems appropriate. Such waiver must be in writing.
g. The parties acknowledge that this Agreement would not have been entered into, that the benefits described in Sections 6, 7 and 8 herein would not have been promised to the Executive by the Company, in the absence of the Executive’s covenants and promises set forth in Sections 13(a), (b) and (c) herein.
Appears in 1 contract
Non-Competition and Non-Solicitation. (a) Executive The Employee agrees and acknowledges that the Confidential Information that Executive the Employee has already received and will receive is valuable to the Company Corporation and that its protection and maintenance constitutes a legitimate business interest of the CompanyCorporation, to be protected by the non-competition restrictions set forth herein. Executive The Employee agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executivethe Employee. Executive The Employee also acknowledges that the products Corporation’s business is conducted in New York, Connecticut and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States New Jersey (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-non- competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the CompanyCorporation, its affiliates and/or its clients clients, investors or customers. The provisions of this Section 9 shall survive the termination of the Employee’s employment hereunder for the time periods specified below.
(b) Executive The Employee hereby agrees and covenants that he she shall not, not without the prior written consent of the CompanyCorporation, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than (i) as a holder of less than two (2%) percent of the outstanding voting securities of a company whose shares of are traded on any publicly held companynational securities exchange or (ii) as a limited partner, passive minority interest holder in a venture capital fund, private equity fund or similar investment entity which holds or may hold an equity or debt position in portfolio companies that are competitive with the Corporation; provided however, that the Employee shall be precluded from serving as an operating partner, general partner, manager or governing board designee with respect to such portfolio companies), or whether on Executive's the Employee’s own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period Term and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business Business of the Company;
(2) RecruitCorporation, solicit as defined in the next sentence. “Business” shall mean the acquisition and development of patents through internal or hireexternal research and development, or attempt acquisition of existing rights to recruitintellectual property through the acquisition of already issued patents and pending patent applications, solicit or hireboth in the United States and abroad, any employee, or independent contractor development of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive products and processes associated with the business done by the Company with such customer Corporation’s intellectual property and licensing its intellectual property to others seeking to develop products or processes or whose products or processes infringe its intellectual property rights through legal processes, otherwise deriving value from licensing, commercialization, settlement and litigation from its patents and obtaining patents from inventors and patent owners to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Companymonetize patent portfolios.
Appears in 1 contract
Non-Competition and Non-Solicitation. (a) The Executive agrees and acknowledges that the Confidential Information that the Executive has already received and will receive is valuable to the Company Parent and that its protection and maintenance constitutes a legitimate business interest of the CompanyParent, to be protected by the non-competition restrictions set forth herein. The Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on the Executive. The Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients Parent’s Business (as defined in and throughout the United States Section 13(b) (1) below) is conducted worldwide (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the CompanyParent, its affiliates and/or its clients or customers. The provisions of this Section 13 shall survive the termination of the Executive’s employment hereunder for the time periods specified below.
(b) The Executive hereby agrees and covenants that he shall not, not without the prior written consent of the CompanyParent, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than (i) as a holder of less than two (2%) percent of the outstanding voting securities of a company whose shares of are traded on any publicly held companynational securities exchange or (ii) as a limited partner, passive minority interest holder in a venture capital fund, private equity fund or similar investment entity which holds or may hold an equity or debt position in portfolio companies that are competitive with the Parent; provided however, that the Executive shall be precluded from serving as an operating partner, general partner, manager or governing board designee with respect to such portfolio companies), or whether on the Executive's ’s own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period Term and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business Business of the CompanyParent, as defined in the next sentence. For purposes hereof, the Parent’s “Business” shall mean research, development, techniques and technology in any manner involving or related to regeneration of functionally polarized tissue by use of Leucine-rich repeat-containing G- protein coupled Receptor (LGR) expressing cells and any and all inventions, technology and trade secrets related thereto or a result of the services of Employee hereunder, as well as all activities that involve the making, use or licensing thereof;
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company Parent to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement, for the purpose of competing with the Business of the Parent;
(3) Attempt in any manner to solicit or accept from any customer of the CompanyParent, with whom the Company Executive had significant contact during Executive’s employment by the Company Parent (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company Parent with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the CompanyParent, or if any such customer elects to move its business to a person other than the CompanyParent, provide any services (of the kind or competitive with the business of the Company) Parent for such customer, or have any discussions regarding any such service with such customer, on behalf of such other personperson for the purpose of competing with the Business of the Parent; or
(4) Interfere with any relationship, contractual or otherwise, between the Company Parent and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company Parent, for the purpose of soliciting such other party to discontinue or reduce its business with the Company or otherwise interfere in any way Parent for the purpose of competing with the business Business of the CompanyParent. With respect to the activities described in Paragraphs (1), (2), (3) and (4) above, the restrictions of this Section 13(b) shall continue during the Term of this Agreement and for a period of one (1) year thereafter.
Appears in 1 contract
Non-Competition and Non-Solicitation. (a1) Executive agrees and The Employee acknowledges that in the Confidential Information Employee’s position of Vice President of FTG, the Employee occupies a position of trust and confidence. The Employee understands that Executive has already received and the following restrictions may limit the Employee’s ability to earn a livelihood in a business which, directly or indirectly, compete with Corporation. However, the Employee agrees that the Employee will receive is valuable sufficient consideration and other benefits as an Employee of Corporation to clearly justify such restrictions which, in any event, given the Company Employee’s skills and that its protection and maintenance constitutes ability will not prevent the Employee from earning a legitimate business interest of the Company, to be protected by the non-competition restrictions set forth hereinliving. Executive agrees and The Employee acknowledges that the non-competition all restrictions set forth herein contained in Section 5.3 are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that valid for the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term adequate protection of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, and goodwill of the Company, its affiliates and/or its clients or customersCorporation and are no broader than is necessary to protect such interests and goodwill.
(b2) Executive hereby agrees and covenants that he The Employee shall not, not (without the prior written consent of the CompanyCorporation) while employed by Corporation and for twelve (12) months after the termination of the Employee’s employment, for any reason, provided such termination occurs during the Term of Employment, whether directly or indirectly, either alone or in conjunction with any individual, firm, corporation, association or other entity (except for the Corporation), whether as principal, agent, stockholder or in any other capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company)whatsoever carry on, or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate engaged in, or have any financial or other interest in or be connected otherwise commercially involved in any manner endeavor, activity or business or which is in whole or in part competitive with the ownership, management, operation or control of any business in competition with the business of the Company;
businesses carried on by the Corporation within the respective territories in which such businesses are then carried on (2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, except for any employee, or independent contractor equity share investment in a public company whose shares are listed on a recognized stock exchange where such share investment does not in the aggregate exceed 5% of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any issued equity shares of such employee or independent contractor is party to an employment agreement;company).
(3) Attempt The Employee shall not (without the prior written consent of the Corporation) while employed by Corporation and for twelve (12) months after the termination of the Employee’s employment, for any reason, provided such termination occurs during the Term of Employment, whether directly or indirectly, either alone or in conjunction with any individual, firm, corporation, association or other entity (except for the Corporation), whether as a principal, agent, stockholder or in any manner other capacity whatsoever:
(a) solicit or attempt to solicit or accept from any customer or prospective customer for the purpose of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement i) persuading or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt attempting to persuade any such customer to cease to do doing business or to reduce curtail the amount of business which such customer or prospective customer has customarily done conducted or might do contemplating conducting with the CompanyCorporation (including any subsidiary, including but not limited to ICS, or if any affiliated corporation), whether or not the relationship between the Corporation and such customer elects to move its business to a person other than or prospective customer was originally established in whole or in part through the Company, provide any services (efforts of the kind Employee; or (ii) to solicit the business of such customer or prospective customer in respect to any products or services which are competitive with the business Corporation (including any subsidiary, including but not limited to ICS, or any affiliated corporation); or.
(b) solicit or attempt to solicit or assist any individual or entity to solicit the employment or engagement of or otherwise entice away from the employment of the Company) for such customerCorporation (including any subsidiary, including but not limited to ICS, or have any discussions regarding affiliated corporation) any such service with such customeremployee of the Corporation (including any subsidiary, on behalf of such other person; orincluding but not limited to ICS, or any affiliated corporation).
(4) Interfere with The parties hereto agree that any relationshipbreach by the Employee of this Section 5.3 shall be deemed to cause the Corporation irreparable harm which cannot adequately be compensated for in damages and that the Corporation in addition to all other remedies, contractual shall be entitled to injunctive or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company equitable relief to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Companyrestrain such breach.
Appears in 1 contract
Sources: Employment Agreement (Integrated Device Technology Inc)
Non-Competition and Non-Solicitation. (a) In further consideration of the compensation to be paid to Executive agrees and hereunder, Executive acknowledges that during the course of his employment with the Company he has become familiar with the Company’s trade secrets and with other Confidential Information that Executive has already received and will receive is valuable to concerning the Company and that its protection his services have been and maintenance constitutes a legitimate business interest shall be of special, unique and extraordinary value to the Company, to be protected by the non-competition restrictions set forth herein. and therefore, Executive agrees that, during the Term and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States for a period of eighteen (18) months thereafter (the “TerritoryNoncompete Period”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall not, without the Company’s prior written consent of the Companyconsent, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, controljoin, be employed by, consult for, control or participate in, or be connected in any manner with the ownership, management, operation or control of, or be connected as a director, officer, employee, partner, consultant or otherwise with, any business or organization in the United States, Canada or Mexico that sells or markets golf equipment, apparel, accessories or services directly to consumers, whether through retail or direct marketing channels, including, but not limited to catalogs and the internet (a “Competitive Business”); provided, however, that nothing herein shall prohibit Executive from (i) being a passive owner of not more than 2% of the outstanding stock of any business class of a corporation which is publicly traded, so long as Executive has no active participation in competition with the business of such corporation; or (ii) becoming involved with a business or organization for which activities comprising a Competitive Business do not represent more than $10 million in revenues or more than 10% of such business or organization’s total revenues. If, at the Company;time of enforcement of this Article 3, a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the parties agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law. Executive acknowledges that the restrictions contained in this Article 3 are reasonable and that he has reviewed the provisions of this Agreement with his legal counsel
(b) During the Term and for a period of two (2) Recruityears thereafter (the “Non-Solicit Period”), solicit Executive shall not directly or hire, indirectly through another person or entity (i) induce or attempt to recruit, solicit or hire, induce any employee, or independent contractor employee of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer employ of the Company, or in any way interfere with whom the relationship between the Company had significant contact during Executive’s employment by and any employeethereof, (ii) hire any person who was an employeeof the Company at any time during the Term or (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade iii) induce or attempt to persuade induce any such customer customer, supplier, licensee, licensor, franchisee or other business relation of the Company to cease to do doing business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if in any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive way interfere with the business of the Company) for relationship between any such customer, supplier, licensee or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between business relation and the Company and any other party, (including, without limitation, making any supplier, distributor, co-venturer negative or joint venturer disparaging statements or communications regarding the Company).
(c) In the event of the Company to discontinue breach or reduce its business with a threatened breach by Executive of any of the provisions of this Section 3.3(c), the Company would suffer irreparable harm, and in addition and supplementary to other rights and remedies existing in its favor, the Company shall be entitled to specific performance and/or injunctive or otherwise interfere other equitable relief from a court of competent jurisdiction in order to enforce or prevent any way with the business violations of the Companyprovisions hereof (without posting a bond or other security). In addition, in the event of an alleged breach or violation by Executive of this Article III, the Noncompete Period and the Non-Solicit Period shall be tolled until such breach or violation has been duly cured.
Appears in 1 contract
Non-Competition and Non-Solicitation. (a) The Executive agrees and acknowledges that the Company has invested substantial time, money and resources in the development and retention of its Inventions, Confidential Information (including trade secrets), customers, accounts and business partners, and further acknowledges that during the course of the Executive's employment with the Company the Executive has already received will have access to the Company's Inventions and Confidential Information (including trade secrets), and will receive is valuable be introduced to the Company existing and that its protection prospective customers, accounts and maintenance constitutes a legitimate business interest partners of the Company, to be protected by the non-competition restrictions set forth herein. The Executive acknowledges and agrees and acknowledges that the non-competition restrictions set forth herein are reasonable Company's business is international in scope. The Executive acknowledges and necessary agrees that any and do not impose undue hardship all "goodwill" associated with any existing or burdens on Executive. Executive also acknowledges that the products and services developed prospective customer, account or provided by business partner belongs exclusively to the Company, its affiliates and/or its clients including, but not limited to, any goodwill created as a result of direct or customers are indirect contacts or are intended to be soldrelationships between the Executive and any existing or prospective customers, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly accounts or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Periodbusiness partners. Additionally, the definition of Territory shall be automatically expanded to cover such other areas)parties acknowledge and agree that the Executive possesses skills that are special, unique or extraordinary and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information ofCompany depends, in great part, upon his use of such skills on its behalf. In recognition of this, the Executive covenants and agrees that:
(a) During the Term, and to protect the goodwill and other legitimate business interests offor a period of six (6) months thereafter, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall may not, without the prior written consent of the Company, directly or indirectly, in any capacity whatsoever, including, without limitation, Board (whether as an employee, employeragent, servant, owner, partner, consultant, principalindependent contractor, partnerrepresentative, shareholder, officer, director stockholder or in any other individual capacity whatsoever), participate in any business that offers products or representative capacity services directly competitive with any of those offered by the Company, or that were under active development by the Company during the Term (other than any such business, a holder "Competitor," any such products or services, "Competitive Services"), provided that nothing herein shall prohibit the Executive from (i) owning securities of less than two (2%) percent corporations which are listed on a national securities exchange or traded in the national over-the-counter market in an amount which does not exceed 3% of the outstanding voting shares of any publicly held company)such corporation or (ii) after termination of his employment (x) participating in the business of a separately managed and operated division, subsidiary or whether on Executive's own behalf affiliate of a Competitor, provided that such division, subsidiary or on behalf affiliate does not offer Competitive Services and the Executive has no business communications with employees of any other person division, subsidiary or entity or otherwise howsoever, during affiliate of the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with Competitor that offers Competitive Services regarding the business of the Company;competitive division, subsidiary or affiliate or (y) becoming affiliated with an entity that is not a Competitor but that is subsequently acquired by or merged with a Competitor, provided that, following such acquisition or merger, he is participating in the business of a separately managed and operated division, subsidiary or affiliate of the Competitor that does not offer Competitive Services and he has no business communications with employees of any division, subsidiary or affiliate of the Competitor that offers Competitive Services regarding the business of the competitive division, subsidiary or affiliate.
(2b) RecruitDuring the Term, other than in the course of the proper performance of his duties hereunder, and for a period of one (1) year thereafter, the Executive may not knowingly, directly or indirectly through another individual or individuals, entice, solicit or hire, or attempt encourage any Company employee to recruit, solicit or hire, any employee, or independent contractor leave the employ of the Company to leave the employment (or any independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do sever its engagement with the Company, absent prior written consent to do so from the Board.
(c) During the Term, and for a period of one (1) year thereafter, the Executive may not knowingly, directly or if indirectly through another individual or individuals, entice, solicit or encourage any such customer elects customer, prospective customer, vendor, strategic partner or business associate of the Company (i) to move its cease doing business to a person other than with the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business relationship with the Company or otherwise interfere in any way refrain from establishing or expanding a relationship with the business Company or (ii) for the purpose of the Companyoffering Competitive Services.
Appears in 1 contract
Non-Competition and Non-Solicitation. (a) Executive 4.1. The Employee agrees and acknowledges undertakes that he will not, for so long as this Agreement is in effect and for a period of two (2) years thereafter (the Confidential Information that Executive has already received and will receive is valuable “Non-Competition Period”), compete or to assist others to compete, whether directly or indirectly, with the Company and that its protection and maintenance constitutes a legitimate business interest of the Company, as currently conducted and as conducted and/or proposed to be protected by conducted during the nonNon-competition restrictions set forth hereinCompetition Period.
4.2. Executive The Employee further agrees and acknowledges undertakes that during the nonNon-competition restrictions set forth herein Competition Period, he will not directly or indirectly solicit any business which is similar to the Company’s business from individuals or entities that are reasonable and necessary and do not impose undue hardship customers, suppliers or burdens on Executive. Executive also acknowledges that the products and services developed or provided by contractors of the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount any of its products and services to customers locatedsubsidiaries, in areas other than the United States affiliates or parent company during the term of the Employment Non-Competition Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall not, without the prior written consent of the CEO.
4.3. The Employee further agrees and undertakes that during the Non-Competition Period, without the prior written consent of the CEO, he will not employ, offer to employ, or in any way directly or indirectly solicit or seek to obtain or achieve the employment by any business or entity of any person employed by either the Company, directly or indirectlyits subsidiaries, in any capacity whatsoeveraffiliates, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director parent company or any other individual successors or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, assigns thereof during the Employment Period Non-Competition Period.
4.4. The Parties hereto agree that the duration and thereafter area for which the covenants set forth in this Section 4 are to be effective are necessary to protect the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor legitimate interests of the Company and its development efforts and accordingly are reasonable, in terms of their geographical and temporal scope. In the event that any court determines that the time period and/or area are unreasonable and that such covenants are to leave that extent unenforceable, the employment (Parties hereto agree that such covenants shall remain in full force and effect for the greatest period of time and in the greatest geographical area that would not render them unenforceable. In addition, the Employee acknowledges and agrees that a breach of Sections 3, 4 or independent contractor relationship) thereof5 hereof, whether or not any such employee or independent contractor is party shall cause irreparable harm to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom its subsidiaries, affiliates and/or parent company and that the Company had significant contact during Executiveshall be entitled to specific performance of this Agreement or an injunction without proof of special damages, together with the costs and reasonable attorney’s employment fees and disbursements incurred by the Company (whether in enforcing its rights under this Agreement Sections 3, 4 or otherwise)5. The Employee acknowledges that the compensation and benefits he receives hereunder are paid, business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Companyinter alia, or if any such customer elects to move its business to a person other than the Companyas consideration for his undertakings contained in Sections 3, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company 4 and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Company5.
Appears in 1 contract
Non-Competition and Non-Solicitation. For a period of five (5) years following the Closing Date, neither Sellers nor their affiliates, including Shareholders, shall (individually or as a consultant, shareholder, partner, venturer, director, officer, agent or otherwise) (a) Executive agrees and acknowledges engage in the business of operating an equipment leasing, equipment financing and/or equipment remarketing business or any related enterprise that is competitive with the Confidential Information that Executive has already received and will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest of the Company, to be protected products or services offered by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the CompanyBusiness in any geographic area in which Buyer conducts its business, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees solicit, call on or contact any past (within the past twelve (12) months) or present customers, vendors, lessees, suppliers or employees of Sellers with respect to the Business. Sellers and covenants that he shall not, without Shareholders agree for a five (5) year period subsequent to the prior written consent of the Company, directly Closing Date: a) not to become employed or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director perform services for a conflicting organization; or any other individual or representative capacity (other than a holder of less than two (2%c) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of themselves or any other person or entity entity, hire, attempt to hire, or otherwise howsoever, assist in hiring any person who was an employee of Sellers or Buyer at any time during the Employment Period five (5) year period. In addition, Sellers and thereafter Shareholders shall keep and maintain all confidential and proprietary information of Sellers, including without limitation, financial statements, customer and supplier lists, pricing information, sales and purchases margins and practices, methods of telephone solicitation and similar information regarding the business and affairs of Sellers, confidential and shall not disclose such information to any third person or exploit such information personally except as required under law, or if such information is in the public domain. In the event that Sellers or Shareholders breach the provisions of this Section 12(f), Buyer shall have the non-exclusive right and remedy to have this section specifically enforced to the extent described belowpermitted by any court of competent jurisdiction, within it being acknowledged and agreed that any breach or threatened breach might cause immediate irreparable injury to Buyer and that monetary damages may not provide an adequate remedy at law. If any of the Territory:
(1provisions of this Section 12(f) Engageare construed to be invalid or unenforceable in any jurisdiction, ownthe remainder of this section shall not be affected, manageand the court making such a determination shall have the power to modify this Section 12(f) and substitute the maximum duration, operate, control, be employed by, consult for, participate inscope, or be connected in any manner with area permissible under the ownershipcircumstances for the stated duration, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hirescope, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Companyarea.
Appears in 1 contract
Sources: Asset Purchase Agreement
Non-Competition and Non-Solicitation. In consideration of Parent's and Acquisition Corp.'s agreement to enter into this Agreement and the Acquisition Agreement, and as a condition thereto, each Principal Shareholder covenants and agrees as follows:
(a) Executive agrees and Each Principal Shareholder hereby acknowledges that it is or may be familiar with the Confidential Information Companies' trade secrets and with other confidential information and such Principal Shareholder acknowledges and agrees that Executive has already received and will receive is valuable to Parent, Acquisition Corp., the Company and that its protection and maintenance constitutes a legitimate their respective Subsidiaries would be irreparably damaged if it were to provide services to or otherwise participate in the business interest of the Company, to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent any person competing with the Company comes to operate, either directly or through the engagement any of its Subsidiaries in a distributor or joint or co-venturer, or sell similar business and that any such competition by such Principal Shareholder would result in a significant amount loss of its products and services to customers locatedgoodwill by Parent, in areas other than the United States during the term of the Employment PeriodAcquisition Corp., the definition of Territory shall be automatically expanded to cover such other areas), Company and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customerstheir Subsidiaries.
(b) Executive hereby agrees From the date hereof through and covenants that he shall notincluding the date eighteen months after the Offer Payment Date, without the prior written consent no Principal Shareholder or any of the Companyits affiliates shall, directly or indirectly, own any interest in, manage, control, participate in any capacity whatsoever, including, without limitation, (whether as an officer, director, employee, employer, consultant, principal, partner, shareholderagent, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), consult with, render services for, or in any other manner engage, anywhere in the Restricted Territories in any business engaged directly or indirectly the ownership or operation of the kind retail clothing stores or competitive with the business done other sales outlets providing similar clothing goods and services as those provided by the Company with and its Subsidiaries; PROVIDED THAT nothing herein shall prohibit (x) such customer Principal Shareholder or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to affiliates from being a person other passive owner of not more than the Company, provide any services (2% of the kind or competitive with outstanding stock of any class of a corporation which is publicly traded so long as none of such Persons has any active participation in the business of the Companysuch corporation or (y) for such customerJeffrey A. Goodfriend from owning any interest in, managing, or have con▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ing in, consulting with, rendering services for, or engaging in any discussions regarding business; PROVIDED THAT during such eighteen-month period Jeffrey A. Goodfriend shall not, directly or indirectly, own or h▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ over any such service with such customer, on behalf of such retail clothing stores or other person; or
(4) Interfere with any relationship, contractual or otherwise, between sales outlets providing similar clothing goods and services as those provided by the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business Subsidiaries with the Company or otherwise interfere in any way with the business of the Company.more than 20 stores. From the
Appears in 1 contract
Sources: Support Agreement (Prentice Capital Management, LP)
Non-Competition and Non-Solicitation. (a) The Executive agrees and acknowledges that the Confidential Information that the Executive has already received and will receive is valuable to the Company Corporation and that its protection and maintenance constitutes a legitimate business interest of the CompanyCorporation, to be protected by the non-competition restrictions set forth herein. The Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on the Executive. The Executive also acknowledges that the products Corporation’s business is conducted in New York, Connecticut and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States New Jersey (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the CompanyCorporation, its affiliates and/or its clients clients, investors or customers. The provisions of this Section 9 shall survive the termination of the Executive’s employment hereunder for the time periods specified below.
(b) The Executive hereby agrees and covenants that he shall not, not without the prior written consent of the CompanyCorporation, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than (i) as a holder of less than two (2%) percent of the outstanding voting securities of a company whose shares of are traded on any publicly held companynational securities exchange or (ii) as a limited partner, passive minority interest holder in a venture capital fund, private equity fund or similar investment entity which holds or may hold an equity or debt position in portfolio companies that are competitive with the Corporation; provided however, that the Executive shall be precluded from serving as an operating partner, general partner, manager or governing board designee with respect to such portfolio companies), or whether on the Executive's ’s own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period Term and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business Business of the Company;
(2) RecruitCorporation, solicit as defined in the next sentence. “Business” shall mean the acquisition and development of patents through internal or hireexternal research and development, or attempt acquisition of existing rights to recruitintellectual property through the acquisition of already issued patents and pending patent applications, solicit or hireboth in the United States and abroad, any employee, or independent contractor development of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive products and processes associated with the business done by the Company with such customer Corporation’s intellectual property and licensing its intellectual property to others seeking to develop products or processes or whose products or processes infringe its intellectual property rights through legal processes, otherwise deriving value from licensing, commercialization, settlement and litigation from its patents and obtaining patents from inventors and patent owners to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Companymonetize patent portfolios.
Appears in 1 contract
Sources: Employment Agreement (Spherix Inc)
Non-Competition and Non-Solicitation. (a) Executive The Employee agrees and acknowledges that the Confidential Information that Executive the Employee has already received and will receive is valuable to the Company Corporation and that its protection and maintenance constitutes a legitimate business interest of the CompanyCorporation, to be protected by the non-competition restrictions set forth herein. Executive The Employee agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executivethe Employee. Executive The Employee also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States Corporation’s business is conducted worldwide (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the CompanyCorporation, its affiliates and/or its clients or customers. The provisions of this Section 9 shall survive the termination of the Employee’s employment hereunder for the time periods specified below.
(b) Executive The Employee hereby agrees and covenants that he shall not, not without the prior written consent of the CompanyCorporation, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than (i) as a holder of less than two 5% (2%five percent) percent of the outstanding voting securities of a company whose shares of are traded on any publicly held companynational securities exchange or (ii) as a limited partner, passive minority interest holder in a venture capital fund, private equity fund or similar investment entity which holds or may hold an equity or debt position in portfolio companies that are competitive with the Corporation; provided however, that the Employee shall be precluded from serving as an operating partner, general partner, manager or governing board designee with respect to such portfolio companies), or whether on Executive's the Employee’s own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period Term and thereafter to the extent described below, within the Territory:.
(1i) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business Business of the Company;
(2) RecruitCorporation, solicit as defined in the next sentence. “Business” shall mean the development and sale of lighter than air and heavier than air tethered aerostats or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Companydrones.
Appears in 1 contract
Non-Competition and Non-Solicitation. (a) The Executive agrees and acknowledges that the Confidential Information that the Executive has already received and will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest of the Company, to be protected by the non-competition restrictions set forth herein. The Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on the Executive. The Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients ’s Business (as defined in and throughout the United States Section 12(b)(1) below) is conducted worldwide (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, any member of the Company, its affiliates Company and/or its such member’s clients or customers. The provisions of this Section 12 shall survive the termination of the Executive’s employment hereunder for the time periods specified below.
(b) The Executive hereby agrees and covenants that he shall not, not without the prior written consent of the CompanyBoard, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than (i) as a holder of less than two (2%) percent of the outstanding voting securities of a company whose shares of are traded on any publicly held companynational securities exchange or (ii) as a limited partner, passive minority interest holder in a venture capital fund, private equity fund or similar investment entity which holds or may hold an equity or debt position in portfolio companies that are competitive with the Company; provided, however, that the Executive shall be precluded from serving as an operating partner, general partner, manager or governing board designee with respect to such portfolio companies), or whether on the Executive's ’s own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period Term and thereafter to the extent described below, within the Territory:
(1i) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business Business of the Company, as defined in the next sentence. For purposes hereof, the Company’s “Business” shall mean [***] as well as the Company’s other existing businesses as of the date hereof;
(2ii) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement, for the purpose of competing with the Business of the Company;
(3iii) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company Executive had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) Company for such customer, or have any discussions regarding any such service with such customer, on behalf of such other personperson for the purpose of competing with the Business of the Company; or
(4iv) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company Company, for the purpose of soliciting such other party to discontinue or reduce its business with the Company or otherwise interfere in any way for the purpose of competing with the business Business of the Company. With respect to the activities described in Paragraphs (i), (ii), (iii) and (iv) above, the restrictions of this Section 12(b) shall continue during the term of this Agreement and for a period of one (1) year thereafter.
Appears in 1 contract
Sources: Executive Employment Agreement (Skyline Builders Group Holding LTD)
Non-Competition and Non-Solicitation. As further consideration for the purchase and sale of the Purchased Assets and the other transactions contemplated by this Agreement:
(a) Executive agrees For a period of thirty (30) months after the Closing Date, Seller and acknowledges Seller Parent shall not, and shall require their respective Affiliates not to, directly or indirectly,
(i) develop, market or sell any product or service that competes with the Confidential Information Competing Business, in any country in the world in which Seller conducted the Business during the two years before the Closing Date;
(ii) otherwise engage in any business that Executive competes with the Competing Business in any country in the world in which Seller conducted the Business during the two years before the Closing Date;
(iii) call upon, solicit or otherwise communicate with any Person who is, at that time, or that has already received and will receive been, within two (2) years prior to that time, a customer of Seller for the purpose of selling any product or service that is valuable competitive with the Competing Business;
(iv) grant a license or sublicense to any material Intellectual Property Rights or Technology licensed from Seller to Buyer pursuant to Section 4.1 to any third party for use in a Competing Business; provided, however, the Company and that foregoing shall not limit Seller, Seller Parent or its protection and maintenance constitutes Affiliates from granting (A) in connection with a legitimate business interest cross-license or otherwise, a license without field limitations to all, or a substantial part of, a Patent portfolio, regardless of whether such portfolio includes the Seller Licensed Patents, or (B) non-exclusive licenses to Seller’s, Seller Parent’s, or any of their Affiliates’ products in the ordinary course of their businesses; or
(v) transfer or assign any of the CompanySeller Licensed Patents to any third party, unless such transfer or assignment includes restrictions on the transferee’s or assignee’s rights to be protected by such Patents of at least the non-competition restrictions set forth herein. Executive agrees same scope and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended duration as applicable to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration Seller as set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customersSection 10.1(a)(iv).
(b) Executive hereby agrees For a period of two (2) years after the Closing Date, Seller and covenants that he Seller Parent shall not, without the prior written consent of the Companyand shall require their respective Affiliates not to, directly or indirectly,
(i) employ or hire any Transferred Employee or Canadian Transferred Employee, or
(ii) call upon, solicit or otherwise communicate with any Transferred Employee or Canadian Transferred Employee for the purpose or with the intent of enticing, or in a manner reasonably likely to entice, such Transferred Employee or Canadian Transferred Employee away from the business of Buyer or any capacity Buyer Entity. With respect to Section 10.1(a), (i) the Buyer Entities agree that the business activities of Seller Parent and Seller Parent’s Affiliates (including any investments in third Persons), excluding the Business itself, but including the Excluded Business, as of the Closing Date are consistent with Section 10.1(a) and do not violate Section 10.1(a), (ii) Seller and its Affiliates shall be permitted to own passive investments in other Persons who may engage in the Business so long as such investments constitute less than 20% of the voting power of such Person, and (iii) Seller and its Affiliates shall be permitted to acquire any Person who engages in the Business so long as the portion of such Person which engages in the Business is less than 30% of the revenue or assets of such Person. The provisions of Section 10.1(a) shall automatically terminate and expire and be of no further force or effect whatsoever, includingwithout any action on the part of Seller, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director Buyer or any other Person, in the event of a Change of Control of Ultimate Seller Parent. With respect to Section 10.1(b), the provisions shall not prohibit any generalized solicitation, including through employment-search firms, which are not specifically directed at the Transferred Employees or Canadian Transferred Employee, or the hiring of any individual who responds to such generalized solicitation, provided that such individual has not been an employee of Buyer or representative capacity its Affiliates within six (6) months of such solicitation; provided, further, that the foregoing six (6) months limitation shall not apply to any hiring of any individual, other than a holder of less than two (2%) percent Key Employee who is not a resident of the outstanding voting shares State of any publicly held company)California, or whether if Seller reasonably believes, on Executive's own behalf or on behalf advice of any other person or entity or otherwise howsoevercounsel, during that the Employment Period and thereafter failure to hire such individual due to the extent described belowrestrictions in the foregoing proviso is inconsistent with applicable Laws and Regulations (including for avoidance of doubt, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business resident of the Company;
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor State of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwiseCalifornia), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Company.
Appears in 1 contract
Non-Competition and Non-Solicitation. (a1) Executive agrees and The Employee acknowledges that in the Confidential Information Employee’s position of Chairman of the Board of Directors, the Employee occupies a position of trust and confidence. The Employee understands that Executive has already received and the following restrictions may limit the Employee’s ability to earn a livelihood in a business which, directly or indirectly, compete with Corporation. However, the Employee agrees that the Employee will receive is valuable sufficient consideration and other benefits as an Employee of Corporation to clearly justify such restrictions which, in any event, given the Company Employee’s skills and that its protection and maintenance constitutes ability will not prevent the Employee from earning a legitimate business interest of the Company, to be protected by the non-competition restrictions set forth hereinliving. Executive agrees and The Employee acknowledges that the non-competition all restrictions set forth herein contained in Section 5.3 are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that valid for the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term adequate protection of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, and goodwill of the Company, its affiliates and/or its clients or customersCorporation and are no broader than is necessary to protect such interests and goodwill.
(b2) Executive hereby agrees and covenants that he The Employee shall not, not (without the prior written consent of the CompanyCorporation) while employed by Corporation and for twelve (12) months after the termination of the Employee’s employment, for any reason, provided such termination occurs during the Term of Employment, whether directly or indirectly, either alone or in conjunction with any individual, firm, corporation, association or other entity (except for the Corporation), whether as principal, agent, stockholder or in any other capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company)whatsoever carry on, or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate engaged in, or have any financial or other interest in or be connected otherwise commercially involved in any manner endeavor, activity or business or which is in whole or in part competitive with the ownership, management, operation or control of any business in competition with the business of the Company;
businesses carried on by the Corporation within the respective territories in which such businesses are then carried on (2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, except for any employee, or independent contractor equity share investment in a public company whose shares are listed on a recognized stock exchange where such share investment does not in the aggregate exceed 5% of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any issued equity shares of such employee or independent contractor is party to an employment agreement;company).
(3) Attempt The Employee shall not (without the prior written consent of the Corporation) while employed by Corporation and for twelve (12) months after the termination of the Employee’s employment, for any reason, provided such termination occurs during the Term of Employment, whether directly or indirectly, either alone or in conjunction with any individual, firm, corporation, association or other entity (except for the Corporation), whether as a principal, agent, stockholder or in any manner other capacity whatsoever:
(a) solicit or attempt to solicit or accept from any customer or prospective customer for the purpose of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement i) persuading or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt attempting to persuade any such customer to cease to do doing business or to reduce curtail the amount of business which such customer or prospective customer has customarily done conducted or might do contemplating conducting with the CompanyCorporation (including any subsidiary, including but not limited to ICS, or if any affiliated corporation), whether or not the relationship between the Corporation and such customer elects to move its business to a person other than or prospective customer was originally established in whole or in part through the Company, provide any services (efforts of the kind Employee; or (ii) to solicit the business of such customer or prospective customer in respect to any products or services which are competitive with the business Corporation (including any subsidiary, including but not limited to ICS, or any affiliated corporation); or.
(b) solicit or attempt to solicit or assist any individual or entity to solicit the employment or engagement of or otherwise entice away from the employment of the Company) for such customerCorporation (including any subsidiary, including but not limited to ICS, or have any discussions regarding affiliated corporation) any such service with such customeremployee of the Corporation (including any subsidiary, on behalf of such other person; orincluding but not limited to ICS, or any affiliated corporation).
(4) Interfere with The parties hereto agree that any relationshipbreach by the Employee of this Section 5.3 shall be deemed to cause the Corporation irreparable harm which cannot adequately be compensated for in damages and that the Corporation in addition to all other remedies, contractual shall be entitled to injunctive or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company equitable relief to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Companyrestrain such breach.
Appears in 1 contract
Sources: Employment Agreement (Integrated Device Technology Inc)
Non-Competition and Non-Solicitation. (a) Executive agrees and acknowledges that During the Confidential Information that Executive has already received and will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest of the Company, to be protected by the nonNon-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Competition Period, the definition of Territory Executive shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall not, without the prior written consent of the Company, not directly or indirectly, :
a) Engage in any capacity whatsoever, including, without limitation, business or enterprise (whether as an owner, partner, officer, employee, employerexecutive, director, investor, lender, consultant, principalindependent contractor or otherwise, partner, shareholder, officer, director or any other individual or representative capacity (other than a except as the holder of less not more than two (2%) percent 1% of the combined voting power of the outstanding voting shares stock of any a publicly held company) that is competitive with Teradyne (including but not limited to, any business or enterprise that develops, designs, produces, markets, sells or renders any product or service competitive with any product or service developed, produced, marketed, sold or rendered by Teradyne while Executive was employed by Teradyne);
b) Either alone or in association with others, recruit, solicit, hire or whether on Executive's own behalf or on behalf of engage as an independent contractor, any other person or entity or otherwise howsoever, who was employed by Teradyne at any time during the Employment Period and thereafter to the extent described belowperiod of Executive’s employment with Teradyne, within the Territory:except for an individual whose employment with Teradyne has been terminated for a period of six months or longer; or
(1c) EngageEither alone or in association with others, ownsolicit, manage, operate, control, be employed by, consult for, participate in, divert or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hiretake away, or attempt to recruitdivert or to take away, solicit the business or hirepatronage of any client or customer or entity that was a prospective client or customer of Teradyne during the Executive’s employment. If any restriction set forth in this Section 4 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, any employeethe parties agree that it shall be interpreted to extend only over the maximum period of time, range of activities or independent contractor geographic area as to which it may be enforceable. The Executive acknowledges that the restrictions contained in this Section 4 are necessary for the protection of the Company business and goodwill of Teradyne and are considered by the Executive to leave be reasonable for such purpose. The Executive agrees that any breach of this Section 4 will cause Teradyne irreparable harm and therefore, in the employment (or independent contractor relationship) thereof, whether or not event of any such employee or independent contractor is party breach, in addition to an employment agreement;
(3) Attempt in any manner such other remedies that may be available, Teradyne shall have the right to solicit or accept from any customer seek equitable and/or injunctive relief. The Executive acknowledges and understands that he may rescind his acceptance of the Companyterms of this Agreement, with whom the Company had significant contact during Executive’s employment including his agreement to be bound by the Company restrictions in this Section 4, for a period of seven (whether under 7) business days after his acceptance. The geographic scope of this Agreement Section 4 shall extend to anywhere Teradyne or otherwise)any of its subsidiaries is doing business, has done business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease has plans to do business or as of the Retirement Date. The Executive agrees that during the Non-Competition Period, he will make reasonable, good faith efforts to reduce the amount give written notice to Teradyne of each new business which such customer has customarily done or might do with the Companyactivity he plans to undertake, or if at least (5) business days prior to beginning any such customer elects activity. If the Executive violates the provisions of this Section 4, Teradyne shall be entitled to move its business discontinue any continued vesting per Section 1(a)-(c) above and Executive shall continue to a person other than be bound by the Company, provide any services (restrictions set forth in this Section 4 for an additional period of time equal to the duration of the kind or competitive with the business of the Company) for violation, such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company additional period not to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Companyexceed 24 months.
Appears in 1 contract
Non-Competition and Non-Solicitation. (a) Executive agrees and acknowledges that During the Confidential Information that Executive has already received and will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest of the Company, to be protected by the nonNon-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Competition Period, the definition of Territory Executive shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall not, without the prior written consent of the Company, not directly or indirectly, :
a) Engage in any capacity whatsoever, including, without limitation, business or enterprise (whether as an owner, partner, officer, employee, employerexecutive, director, investor, lender, consultant, principalindependent contractor or otherwise, partner, shareholder, officer, director or any other individual or representative capacity (other than a except as the holder of less not more than two (2%) percent 1% of the combined voting power of the outstanding voting shares stock of any a publicly held company) that is competitive with Teradyne (including but not limited to, any business or enterprise that develops, designs, produces, markets, sells or renders any product or service competitive with any product or service developed, produced, marketed, sold or rendered by Teradyne while Executive was employed by Teradyne);
b) Either alone or in association with others, recruit, solicit, hire or whether on Executive's own behalf or on behalf of engage as an independent contractor, any other person or entity or otherwise howsoever, who was employed by Teradyne at any time during the Employment Period and thereafter to the extent described belowperiod of Executive’s employment with Teradyne, within the Territory:except for an individual whose employment with Teradyne has been terminated for a period of six months or longer; or
(1c) EngageEither alone or in association with others, ownsolicit, manage, operate, control, be employed by, consult for, participate in, divert or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hiretake away, or attempt to recruitdivert or to take away, solicit the business or hirepatronage of any client or customer or entity that was a prospective client or customer of Teradyne during the Executive’s employment. If any restriction set forth in this Section 3 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, any employeethe parties agree that it shall be interpreted to extend only over the maximum period of time, range of activities or independent contractor geographic area as to which it may be enforceable. Executive acknowledges that the restrictions contained in this Section 3 are necessary for the protection of the Company business and goodwill of Teradyne and are considered by Executive to leave be reasonable for such purpose. Executive agrees that any breach of this Section 3 will cause Teradyne irreparable harm and therefore, in the employment (or independent contractor relationship) thereof, whether or not event of any such employee breach, in addition to such other remedies that may be available, Teradyne shall have the right to seek equitable and/or injunctive relief. The geographic scope of this Section 3 shall extend to anywhere Teradyne or independent contractor any of its subsidiaries is party to an employment agreement;
(3) Attempt in any manner to solicit doing business, has done business or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease has plans to do business or as of the Retirement Date. Executive agrees that during the Non-Competition Period, he will make reasonable good faith efforts to reduce the amount give written notice to Teradyne of each new business which such customer has customarily done or might do with the Companyactivity he plans to undertake, or if at least (5) business days prior to beginning any such customer elects activity. If Executive violates the provisions of this Section 3, Teradyne shall be entitled to move its business discontinue any continued vesting per Section 1 above and Executive shall continue to a person other than be bound by the Company, provide any services (restrictions set forth in this Section 3 for an additional period of time equal to the duration of the kind or competitive with the business of the Company) for violation, such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company additional period not to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Companyexceed 24 months.
Appears in 1 contract
Non-Competition and Non-Solicitation. (a) Executive 4.1. The Employee agrees and acknowledges undertakes that he will not, for so long as this Agreement is in effect and for a period of one (1) year thereafter (the Confidential Information that Executive has already received and will receive is valuable "Non-Competition Period"), directly compete or to assist others to directly compete with the Company and that its protection and maintenance constitutes a legitimate business interest of the Company, -------------------------------------------------------------------------------- Protalix EMPLOYMENT AGREEMENT Version: -------------------------------------------------------------------------------- Ltd. Page: 6 of: 11 -------------------------------------------------------------------------------- as currently conducted and as conducted and/or proposed to be protected by conducted during the nonNon-competition restrictions set forth hereinCompetition Period.
4.2. Executive The Employee further agrees and acknowledges undertakes that during the nonNon-competition restrictions set forth herein Competition Period, he will not directly solicit any business which is similar to the Company's business from individuals or entities that are reasonable and necessary and do not impose undue hardship customers, suppliers or burdens on Executive. Executive also acknowledges that the products and services developed or provided by contractors of the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount any of its products and services to customers locatedsubsidiaries, in areas other than the United States affiliates or parent company during the term of the Employment Non-Competition Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall not, without the prior written consent of the CEO.
4.3. The Employee further agrees and undertakes that during the Non-Competition Period, without the prior written consent of the CEO, he will not employ, offer to employ, or in any way directly or indirectly solicit or seek to obtain or achieve the employment by any business or entity of any person employed by either the Company, directly or indirectlyits subsidiaries, in any capacity whatsoeveraffiliates, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director parent company or any other individual successors or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, assigns thereof during the Employment Period Non-Competition Period.
4.4. The Parties hereto agree that the duration and thereafter area for which the covenants set forth in this Section 4 are to be effective are necessary to protect the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor legitimate interests of the Company and its development efforts and accordingly are reasonable, in terms of their geographical and temporal scope. In the event that any court determines that the time period and/or area are unreasonable and that such covenants are to leave that extent unenforceable, the employment (Parties hereto agree that such covenants shall remain in full force and effect for the greatest period of time and in the greatest geographical area that would not render them unenforceable. In addition, the Employee acknowledges and agrees that a breach of Sections 3, 4 or independent contractor relationship) thereof5 hereof, whether or not any such employee or independent contractor is party shall cause irreparable harm to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom its subsidiaries, affiliates and/or parent company and that the Company had significant contact during Executive’s employment shall be entitled to specific performance of this Agreement or an injunction without proof of special damages, together with the costs and reasonable attorney's fees and disbursements incurred by the Company (whether in enforcing its rights under this Agreement Sections 3, 4 or otherwise)5. The Employee acknowledges that the compensation and benefits he receives hereunder are paid, business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Companyinter alia, or if any such customer elects to move its business to a person other than the Companyas consideration for his undertakings contained in Sections 3, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company 4 and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Company5.
Appears in 1 contract
Sources: Employment Agreement (Protalix BioTherapeutics, Inc.)
Non-Competition and Non-Solicitation. (a) Executive agrees and acknowledges that During the Confidential Information that Executive has already received and will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest of the Company, to be protected by the nonNon-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Competition Period, the definition of Territory Executive shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall not, without the prior written consent of the Company, not directly or indirectly, :
a) Engage in any capacity whatsoever, including, without limitation, business or enterprise (whether as an employeeowner, employerpartner, officer, Executive, director, investor, lender, consultant, principalindependent contractor or otherwise, partner, shareholder, officer, director or any other individual or representative capacity (other than a except as the holder of less not more than two (2%) percent 1% of the combined voting power of the outstanding voting shares stock of any a publicly held company) that is competitive with Teradyne (including but not limited to, any business or enterprise that develops, designs, produces, markets, sells or renders any product or service competitive with any product or service developed, produced, marketed, sold or rendered by Teradyne while Executive was employed by Teradyne);
b) Either alone or in association with others, recruit, solicit, hire or whether on Executive's own behalf or on behalf of engage as an independent contractor, any other person or entity or otherwise howsoever, who was employed by Teradyne at any time during the Employment Period and thereafter to the extent described belowperiod of Executive’s employment with Teradyne, within the Territory:except for an individual whose employment with Teradyne has been terminated for a period of six months or longer; or
(1c) EngageEither alone or in association with others, ownsolicit, manage, operate, control, be employed by, consult for, participate in, divert or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hiretake away, or attempt to recruitdivert or to take away, solicit the business or hirepatronage of any client or customer or entity that was a prospective client or customer of Teradyne during the Executive’s employment. If any restriction set forth in this Section 4 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, any employeeit shall be interpreted to extend only over the maximum period of time, range of activities or independent contractor geographic area as to which it may be enforceable. Executive acknowledges that the restrictions contained in this Section 5 are necessary for the protection of the Company business and goodwill of Teradyne and are considered by Executive to leave be reasonable for such purpose. Executive agrees that any breach of this Section 5 will cause Teradyne irreparable harm and therefore, in the employment (or independent contractor relationship) thereof, whether or not event of any such employee breach, in addition to such other remedies that may be available, Teradyne shall have the right to seek equitable and/or injunctive relief. The geographic scope of this Section 4 shall extend to anywhere Teradyne or independent contractor any of its subsidiaries is party doing business, has done business or has plans to an employment agreement;
do business. Executive agrees that during the Non-Competition Period, he will make reasonable good faith efforts to give verbal notice to Teradyne of each new business activity he plans to undertake, at least (35) Attempt in business days prior to beginning any manner such activity. If Executive violates the provisions of this Section 4, Teradyne shall be entitled to solicit or accept from discontinue any customer continued vesting per Section 1 and all equity grants subject to this Agreement which are unvested as of the Company, with whom date of the Company had significant contact during Executive’s employment violation shall be forfeited. Executive shall nevertheless continue to be bound by the Company (whether under restrictions set forth in this Agreement or otherwise), business Section 4 for an additional period of time equal to the duration of the kind or competitive with violation, such additional period not to exceed 24 months from the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (end of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, coNon-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the CompanyCompetition Period.
Appears in 1 contract
Sources: Executive Officer Retirement Agreement (Teradyne, Inc)
Non-Competition and Non-Solicitation. (a5.15.1. Each Seller Party and each other Seller listed on Schedule 1(g)(i) Executive or Schedule 1(g)(ii) who executes a Letter of Transmittal agrees and acknowledges that the Confidential Information that Executive has already received and will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest of the Companythat, to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Restricted Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall Seller will not, without the prior written consent of the Company, directly or indirectly, in any capacity whatsoeverwhether as owner, includingpartner, without limitation, as an employee, employerinvestor, consultant, principalagent, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer otherwise, engage in (except on behalf of the Group Companies) or compete with, or undertake any planning to engage in or compete with, all or any portion of the Hospitalist Business, within twenty-five miles of any medical facility at which any Group Company currently provides, or is in active planning to provide as of the Closing Date, services in connection with the Hospitalist Business. Notwithstanding anything to the contrary in Section 5.15, the following will not constitute, solely by reason thereof, a violation on the part of such Seller of Section 5.15: (a) a Seller’s passive ownership of three percent (3%) or less of the equity securities of a publicly traded company; (b) any acquisition by a Seller of a business (the “Acquired Business”), and continued operation of such Acquired Business, a portion of which consists of the Hospitalist Business, as long as the Acquired Business, at the time it was acquired by the applicable Seller, earned less than ten percent (10%) of its aggregate revenue from the Hospitalist Business; and (c) any conduct of the Hospitalist Business by a Seller at any time to the extent the Hospitalist Business services are being provided solely to Affiliates of such Seller; provided, that with respect to the foregoing clause (b), if Fresenius or any of its Affiliates acquires any business during the Restricted Period that, at the closing of the acquisition of such Acquired Business, derives more than ten percent (15)% of its aggregate revenue from the Hospitalist Business, Fresenius (or its Affiliate) will promptly divest such business and, in any event, no more than one (1) year after such acquisition, and the Group Companies will have a right of first refusal to purchase such divested business on substantially the same terms and conditions as the proposed divestiture. Fresenius will provide written notice to Holdco II stating the material terms and conditions of the proposed divestiture, including proposed purchase price, and Holdco II will have a period of up to fifteen (15) Business Days to indicate its interest in acquiring such divested business which will remain subject to customary diligence and negotiation and execution of transaction documents in relation thereto. If Holdco II elects in writing not to pursue the purchase of such divested business or otherwise fails to respond to the written notice delivered pursuant hereto after fifteen (15) Business Days, Fresenius may sell such divested business at any time within nine (9) months following such period to a third party on terms and conditions no more favorable to the third party than those specified in the notice delivered by Fresenius to Holdco II and thereafter Fresenius may not sell such divested business without first following the procedures set forth in this Section 5.15.1.
5.15.2. Each Seller Party and each other Seller listed on Schedule 1(g)(i) or Schedule 1(g)(ii) who executes a Letter of Transmittal agrees that, during the Restricted Period, such Seller will not, directly or indirectly, (a) solicit or encourage any Person who has been a customer, vendor, supplier, independent contractor or other business partner of any of the Group Companies at any time within the twelve (12)-month period immediately preceding the Closing Date to terminate or diminish its, his or her relationship with any of the Group Companies, (b) seek to persuade any Person who has been a prospective customer or client of any of the Group Companies at any time within the twelve (12) month period immediately preceding the Closing Date to obtain the services of the Hospitalist Business from anyone else other than the Group Companies or (c) hire or engage, or solicit for hiring or engagement, any employee of any of the Group Companies who was such at any time within the twelve (12)-month period immediately preceding the Closing Date, or seek to persuade any such employee to discontinue employment with any of the Group Companies or reduce its business with the Company Buyer Parties or otherwise interfere in any way with of their respective Affiliates. Notwithstanding the business foregoing, none of the following will constitute a violation on the part of a Seller of this Section 5.15.2: (i) a general solicitation by a Seller that is not directed at any of the Persons described in this Section 5.15.2; (ii) hiring an employee of a Group Company who responds to a permitted general solicitation; and (iii) hiring an employee of a Group Company at least six (6) months after such employee ceased to be an employee of a Group Company; provided that the actions in the preceding clauses (ii) and (iii) will not be permitted with respect to any employee of the Group Companies set forth on Schedule 5.15.2.
5.15.3. Each Seller Party and each other Seller listed on Schedule 1(g)(i) or Schedule 1(g)(ii) who executes a Letter of Transmittal agrees that (a) his, her or its agreement to the covenants contained in this Section 5.15 is a material condition of the Buyer Parties’ willingness to enter into this Agreement and consummate the Contemplated Transactions, (b) the covenants contained in this Section 5.15 are necessary to protect the good will, confidential information, trade secrets and other legitimate interests of the Group Companies and the Buyer Parties, (c) in addition and not in the alternative to any other remedies available to it, the Buyer Parties will be entitled to preliminary and permanent injunctive relief against any breach or threatened breach by such Seller of any such covenants, without having to post bond, together with an award of its reasonable attorneys’ fees incurred in enforcing its rights hereunder, (d) the Restricted Period applicable to such Seller will be tolled, and will not run, during the period of any breach by such Seller of any such covenants, (e) no claimed breach of this Agreement or any of the Ancillary Agreements will operate to extinguish such Seller’s obligation to comply with this Section 5.15, and (f) in the event that the final judgment of any court of competent jurisdiction declares any term or provision of this Section 5.15 to be invalid or unenforceable by reason of its being extended over too great a time, too large a geographic area or too great a range of activities, that provision will be deemed to be modified to permit its enforcement to the maximum extent permitted by law.
Appears in 1 contract
Sources: Merger Agreement (Fresenius Medical Care AG & Co. KGaA)
Non-Competition and Non-Solicitation. (a) The Executive agrees and acknowledges that the Confidential Information that the Executive has already received and will receive is valuable to Parent and the Company and that its protection and maintenance constitutes a legitimate business interest of Parent and the Company, to be protected by the non-competition restrictions set forth herein. The Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on the Executive. The Executive also acknowledges that the products Company’s and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States Parent’s business is conducted worldwide (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers. The provisions of this Section 9 shall survive the termination of the Executive’s employment hereunder for the time periods specified below.
(b) The Executive hereby agrees and covenants that he shall not, not without the prior written consent of the CompanyParent, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than (i) as a holder of less than two (2%) percent of the outstanding voting securities of a company whose shares of are traded on any publicly held companynational securities exchange or (ii) as a limited partner or passive minority interest holder in a venture capital fund, private equity fund or similar investment entity which holds or may hold an equity or debt position in portfolio companies that are competitive with the Parent or the Company; provided however, that the Executive shall be precluded from serving as an operating partner, general partner, manager or governing board designee with respect to such portfolio companies), or whether on the Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period Term and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business Business of the Company, as defined in the next sentence. For purposes hereof, the term “Business” shall mean the sales and service of satellite voice and data equipment;
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement, for the purpose of competing with the Business of the Company;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company Executive had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business Business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business Business of the Company) Company for such customer, or have any discussions regarding any such service with such customer, on behalf of such other personperson for the purpose of competing with the Business of the Company; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company Company, for the purpose of soliciting such other party to discontinue or reduce its business with the Company or otherwise interfere in any way for the purpose of competing with the business Business of the Company. With respect to the activities described in subparagraphs (1), (2), (3) and (4) above, the restrictions of this Section 9 shall continue during the Term hereof and, upon termination of the Executive’s employment pursuant to Section 5 (other than pursuant to Section 5(a)(v), 5(a)(vii), or 5(a)(viii)), for a period of one (1) year thereafter.
Appears in 1 contract
Sources: Executive Employment Agreement (Orbital Tracking Corp.)
Non-Competition and Non-Solicitation. (a) The Executive agrees and acknowledges that the Confidential Information that the Executive has already received and will receive is valuable to the Parent and the Company and that its protection and maintenance constitutes a legitimate business interest of the Parent and the Company, to be protected by the non-competition restrictions set forth herein. The Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on the Executive. The Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients ’s Business (as defined in and throughout the United States Section 14(b)(1) below) is conducted worldwide (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Parent, the Company, its their affiliates and/or its their clients or customers. The provisions of this Section 14 shall survive the termination of the Executive’s employment hereunder for the time periods specified below.
(b) The Executive hereby agrees and covenants that he shall not, not without the prior written consent of the Parent and the Company, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than (i) as a holder of less than two (2%) percent of the outstanding voting securities of a company whose shares of are traded on any publicly held companynational securities exchange or (ii) as a limited partner, passive minority interest holder in a venture capital fund, private equity fund or similar investment entity which holds or may hold an equity or debt position in portfolio companies that are competitive with the Parent and the Company; provided however, that the Executive shall be precluded from serving as an operating partner, general partner, manager or governing board designee with respect to such portfolio companies), or whether on the Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period Term and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business Business of the Company;, as defined in the next sentence. For purposes hereof, the Company’s Business shall mean the electronics distribution business as well as any future related or unrelated industries or segments in which the Parent or the Company may engage or operate in the future.
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Parent or the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement, for the purpose of competing with the Business of the Parent or the Company;
(3) Attempt in any manner to solicit or accept from any customer of the Parent or the Company, with whom the Company Executive had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Parent or the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Parent or the Company, or if any such customer elects to move its business to a person other than the Parent or the Company, provide any services (of the kind or competitive with the business of the Company) Parent or the Company for such customer, or have any discussions regarding any such service with such customer, on behalf of such other personperson for the purpose of competing with the Business of the Parent or the Company; or
(4) Interfere with any relationship, contractual or otherwise, between the Parent or the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company Parent or the Company, for the purpose of soliciting such other party to discontinue or reduce its business with the Company or otherwise interfere in any way for the purpose of competing with the business Business of the Parent or the Company. With respect to the activities described in Paragraphs (1), (2), (3) and (4) above, the restrictions of this Section 14(b) shall continue during the Term and for a period of one (1) year thereafter.
Appears in 1 contract
Non-Competition and Non-Solicitation. In consideration of Parent's and Acquisition Corp.'s agreement to enter into this Agreement and the Acquisition Agreement, and as a condition thereto, each Principal Shareholder covenants and agrees as follows:
(a) Executive agrees and Each Principal Shareholder hereby acknowledges that it is or may be familiar with the Confidential Information Companies' trade secrets and with other confidential information and such Principal Shareholder acknowledges and agrees that Executive has already received and will receive is valuable to Parent, Acquisition Corp., the Company and that its protection and maintenance constitutes a legitimate their respective Subsidiaries would be irreparably damaged if it were to provide services to or otherwise participate in the business interest of the Company, to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent any person competing with the Company comes to operate, either directly or through the engagement any of its Subsidiaries in a distributor or joint or co-venturer, or sell similar business and that any such competition by such Principal Shareholder would result in a significant amount loss of its products and services to customers locatedgoodwill by Parent, in areas other than the United States during the term of the Employment PeriodAcquisition Corp., the definition of Territory shall be automatically expanded to cover such other areas), Company and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customerstheir Subsidiaries.
(b) Executive hereby agrees From the date hereof through and covenants that he shall notincluding the date eighteen months after the Offer Payment Date, without the prior written consent no Principal Shareholder or any of the Companyits affiliates shall, directly or indirectly, own any interest in, manage, control, participate in any capacity whatsoever, including, without limitation, (whether as an officer, director, employee, employer, consultant, principal, partner, shareholderagent, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), consult with, render services for, or in any other manner engage, anywhere in the Restricted Territories in any business engaged directly or indirectly the ownership or operation of the kind retail clothing stores or competitive with the business done other sales outlets providing similar clothing goods and services as those provided by the Company with and its Subsidiaries; provided that nothing herein shall prohibit (x) such customer Principal Shareholder or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to affiliates from being a person other passive owner of not more than the Company, provide any services (2% of the kind or competitive with outstanding stock of any class of a corporation which is publicly traded so long as none of such Persons has any active participation in the business of the Companysuch corporation or (y) for such customer▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ from owning any interest in, managing, or controlling, participating in, consulting with, rendering services for, or engaging in any business; provided that during such eighteen-month period ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ shall not, directly or indirectly, own or have voting control over any discussions regarding any such service with such customer, on behalf of such retail clothing stores or other person; or
(4) Interfere with any relationship, contractual or otherwise, between sales outlets providing similar clothing goods and services as those provided by the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business Subsidiaries with the Company or otherwise interfere in any way with the business of the Company.more than 20 stores. From the
Appears in 1 contract
Non-Competition and Non-Solicitation. (a) The Executive agrees and acknowledges that the Confidential Information that the Executive has already received and will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest of the Company, to be protected by the non-competition restrictions set forth herein. The Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on the Executive. The Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients ’s Business (as defined in and throughout the United States Section 13(b)(1) below) is conducted worldwide (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers. The provisions of this Section 13 shall survive the termination of the Executive’s employment hereunder for the time periods specified below.
(b) The Executive hereby agrees and covenants that he shall not, not without the prior written consent of the Company, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than (i) as a holder of less than two (2%) percent of the outstanding voting securities of a Company whose shares of are traded on any publicly held companynational securities exchange or (ii) as a limited partner, passive minority interest holder in a venture capital fund, private equity fund or similar investment entity which holds or may hold an equity or debt position in portfolio companies that are competitive with the Company; provided however, that the Executive shall be precluded from serving as an operating partner, general partner, manager or governing board designee with respect to such portfolio companies), or whether on the Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and the Separation Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business Business of the Company;, as defined in the next sentence. The Company’s Business shall be (i) the commercialization, development and enforcement of on-line mapping intellectual property assets, including the acquisition and development of patents through internal or external research and development, the acquisition of existing rights to intellectual property through acquisitions of already issued patents and pending Video DriveBy and on-line mapping patent applications, both in the United States and abroad and the development of products and processes associated with the intellectual property and the license of the intellectual property to others seeking to develop products or processes or whose products or processes infringe the Company’s intellectual property rights through legal processes and (ii) the commercialization, development and enforcement of intellectual property rights in any other industry or market in which the Company has acquired intellectual property assets during Executive’s employment with the Company.
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement, for the purpose of competing with the Business of the Company;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company Executive had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) Company for such customer, or have any discussions regarding any such service with such customer, on behalf of such other personperson for the purpose of competing with the Business of the Company; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company Company, for the purpose of soliciting such other party to discontinue or reduce its business with the Company or otherwise interfere in any way for the purpose of competing with the business Business of the Company. With respect to the activities described in Paragraphs (1), (2), (3) and (4) above, the restrictions of this Section 13(b) shall continue during the Employment Period and for a period of three (3) years thereafter.
Appears in 1 contract
Sources: Executive Employment Agreement (California Gold Corp.)
Non-Competition and Non-Solicitation. (a) The Executive agrees and acknowledges that the Company has invested substantial time, money and resources in the development and retention of its Inventions, Confidential Information (including trade secrets), customers, accounts and business partners, and further acknowledges that during the course of the Executive's employment with the Company the Executive has already received had and will receive is valuable have access to the Company Company's Inventions and that its protection Confidential Information (including trade secrets), and maintenance constitutes a legitimate will be introduced to existing and prospective customers, accounts and business interest partners of the Company. The Executive acknowledges and agrees that any and all "goodwill" associated with any existing or prospective customer, account or business partner belongs exclusively to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients including, but not limited to, any goodwill created as a result of direct or customers are indirect contacts or are intended to be soldrelationships between the Executive and any existing or prospective customers, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly accounts or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Periodbusiness partners. Additionally, the definition of Territory shall be automatically expanded to cover such other areas)parties acknowledge and agree that Executive possesses skills that are special, unique or extraordinary and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests ofCompany depends upon his use of such skills on its behalf. In recognition of this, the Company, its affiliates and/or its clients or customers.Executive covenants and agrees that:
(ba) During the Term the Executive hereby agrees and covenants that he shall may not, without the prior written consent of the Board, (whether as an employee, agent, servant, owner, partner, consultant, independent contractor, representative, stockholder or in any other capacity whatsoever) participate in any business that offers products or services competitive in any way to those offered by the Company or that were under active development by the Company during the Term, provided that nothing herein shall prohibit the Executive from owning securities of corporations which are listed on a national securities exchange or traded in the national over-the-counter market in an amount which shall not exceed 3% of the outstanding shares of an such corporation.
(b) During the Term the Executive may not entice, solicit or encourage any Company employee to leave the employ of the Company or any independent contractor to sever its engagement with the Company, absent prior written consent to do so from the Board.
(c) During the Term, and for a period of one (1) year thereafter, the Executive may not, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruitentice, solicit or hireencourage any customer, prospective customer, vendor, strategic partner or attempt to recruit, solicit or hire, any employee, or independent contractor business associate of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), cease doing business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business relationship with the Company or otherwise interfere in any way refrain from establishing or expanding a relationship with the business of the Company.
Appears in 1 contract
Non-Competition and Non-Solicitation. (a) Executive agrees During the period beginning on the Primary Closing Date and acknowledges that ending on the Confidential Information that Executive has already received and will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest first (1st) anniversary of the Company, to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States Primary Closing Date (the “TerritoryNon-Competition Period”), none of the Seller Entities or any of their respective Affiliates (collectively, for purposes of this Section 7.9(a), the “Restricted Entities”) shall, (x) directly or indirectly, engage in the business of the Transferred Business in the Designated Footprint (except with respect to Banking Centers not yet transferred at a Closing) or (y) establish new branches, offices or ATMs, in the Expanded Footprint (it being understood that expansion at any existing branch, office or ATM location in the Expanded Footprint shall not be limited) (each of (x) and (y), individually or together, the “Competing Business”); provided, however, that the Restricted Entities may do each of the following without any Restricted Entity being deemed to be in violation of this Section 7.9(a):
(1) own or hold up to 10% of the outstanding securities of any entity whose securities are listed and traded on a nationally recognized securities exchange or market that is engaged in the Competing Business (provided that the Restricted Entities otherwise do not control the business or affairs of such entity) or hold or exercise rights of ownership with respect to any security in a fiduciary capacity or otherwise for the benefit of a third party not affiliated with any Restricted Entity;
(2) conduct any activities associated with the Retained Businesses, the Excluded Assets or the Excluded Liabilities, including providing Banking Related Services to customers of the Retained Businesses and establishing or maintaining branches, offices or ATMs within the Designated Footprint to service the Retained Businesses; provided that such branches, offices or ATMs will not be designed to engage in the Competing Business and will only provide Banking Related Services to (i) employees of the Restricted Entities or any of their respective Affiliates; (ii) existing or future customers of the Retained Businesses and, to the extent necessary to comply with Seller’s obligations under the Company comes Naming Rights Agreement between Marine Midland Bank (predecessor to operateSeller) and Crossroads Arena LLC, either directly dated May 7, 1996 (as subsequently amended from time to time), establishing or maintaining ATMs and displaying other marketing and HSBC branded materials at HSBC Arena; (iii) customers of the Restricted Entities whose Relationship is related to a branch or office of any Restricted Entity outside of the Designated Footprint; provided further that the Restricted Entities shall not open new accounts at such locations if such new account would have been part of the Transferred Business if it were open as of the date hereof;
(3) conduct any activities (including, but not limited to, mortgage lending, checking and savings account services, general purpose, co-brand, small business, commercial, corporate, travel and entertainment and private label credit cards and insurance services) on a national or super-regional basis or as part of a national or super-regional advertising campaign (including, e.g. in airports) or advertising in the greater New York City metropolitan area, including through the engagement telephone, direct mail or the internet or other electronic media, provided that such activities shall not be specifically targeted at Banking Center Customers or at Persons in the Designated Footprint;
(4) conduct any activities related to investment banking (including, but not limited to, capital markets, liability management, sales and trading, research and strategic advisory services), cash management tied to the Retained Businesses, foreign exchange, derivatives, international trade or U.S. dollar clearing;
(5) conduct lending activities through HSBC Finance Corporation or any of its Subsidiaries including lending to Persons in the Designated Footprint;
(6) make acquisitions or maintain ownership of any entity in connection with a distributor venture capital, merchant banking, private equity or joint similar line of business of any Restricted Entity thereof;
(7) merge, consolidate or co-venturerotherwise engage in a business combination with, or sell a significant amount all or substantially all of its products assets or businesses to, any Person that is not an Affiliate of any Restricted Entity with an existing Competing Business and services continue to customers located, in areas other than the United States during the term operate such existing Competing Business; provided that members of any Restricted Entity board of directors do not constitute a majority of the Employment Period, board of directors of the definition surviving corporation of Territory shall be automatically expanded to cover such other areas), transaction (or of the board of directors of its publicly traded parent company) and that the Territoryshareholders of any Restricted Entity immediately prior to consummation of such transaction do not immediately after consummation of such transaction own sixty percent (60%) or more of the outstanding capital stock or other equity interests of the surviving entity of such transaction (or of its publicly traded parent company); and, scope upon the consummation of prohibited competitionsuch a permitted transaction, the Non-Competition Period and time duration set forth the prohibitions of this Section 7.9(a) shall immediately terminate and be of no further effect with respect to the applicable Restricted Entity; and
(8) purchase or acquire (through merger, stock purchase or purchase of all or substantially all of the assets or otherwise) any entity with an existing Competing Business and continue to operate such existing Competing Business; provided, that if, in the non-competition restrictions set forth below are reasonable and necessary last completed fiscal quarter prior to maintain the value consummation of the Confidential Information of, and to protect the goodwill and other legitimate business interests ofpurchase or acquisition, the Companyaggregate consolidated revenue of such Competing Business exceeded forty percent (40%) of such acquired entity’s total revenue over the same period, its affiliates and/or its clients then the acquiring Restricted Entity shall commence as promptly as practicable a process to sell all or customersa portion of such Competing Businesses to an unaffiliated third-party and shall use reasonable best efforts to complete such sale within twenty-four (24) months of such consummation of the purchase or acquisition, such that the revenues of the acquired entity attributable to the Competing Business do not exceed forty percent (40%) of the total revenues of the acquired entity.
(b) Executive hereby agrees From the date hereof until the Final Closing Date, Purchaser and covenants that he its Affiliates shall not, without the prior written consent of the Company, directly or indirectly, solicit for employment (other than as expressly permitted by this Agreement) or hire (i) any Business Employees and Wealth Management Employees who are not hourly wage (non-exempt) employees, (ii) any employees of the Seller Entities or their Affiliates who are or will be engaged in the preparation for or implementation of any capacity whatsoeverConversion or the transfer of any of the Transferred Business, Purchased Assets or Assumed Liabilities, or who are or will be otherwise involved in providing services under the Transition Services Agreement and (iii) any employees of HSBC Mortgage Corp. who are not otherwise identified on Schedule 7.9(b). For purposes of monitoring Section 7.9(b)(i) and (ii), all individuals described in (i) and (ii) shall be identified on a Schedule 7.9(b) to be delivered to Purchaser within thirty (30) calendar days of the date hereof and which may be updated from time to time by the Seller Entities. Notwithstanding the requirements of Section 14.5, Schedule 7.9(b) may be delivered and updated by e-mail.
(c) During the period beginning on the Primary Closing Date and ending on the first anniversary of the Primary Closing Date:
(1) Purchaser and its Affiliates shall not, directly or indirectly, solicit for employment or hire any Retained Employee; provided that this Section 7.9(c)(1) shall not prohibit Purchaser or any of its Affiliates from (i) engaging in solicitation by means of a general purpose advertisement not specifically targeted at the Retained Employees or hiring any Retained Employee as a result of such general purpose advertisement or (ii) hiring any Retained Employee who was terminated by any Seller Entity after the Primary Closing Date; and
(2) The Seller Entities shall not, directly or indirectly, solicit for employment or hire any Transferred Business Employee; provided that this Section 7.9(c)(2) shall not prohibit any Seller Entity from (i) engaging in solicitation by means of a general purpose advertisement not specifically targeted at the Transferred Business Employees or hiring any Transferred Business Employee as a result of such general purpose advertisement or (ii) hiring any Transferred Business Employee who was terminated by Parent, Purchaser or any of their respective Affiliates after the Primary Closing Date.
(d) During the period beginning on the date hereof and ending on the first (1st) anniversary of the Primary Closing Date, Purchaser and its Affiliates shall not, directly or indirectly, (i) use any information regarding the Retained Businesses in their possession as a result of the transactions contemplated by this Agreement, including as part of the books and records that are Purchased Assets, to solicit or engage in other efforts directed to or targeted at any customer or customers of the Retained Businesses with respect to providing Banking Related Services similar to those of the Retained Businesses or (ii) use such information to take any other actions that are designed to induce any customer of the Retained Businesses to transfer any portion of such customer’s Relationships with Seller with respect to the Retained Businesses to a similar business of Purchaser or its Affiliates; provided that nothing in this Section 7.9(d) shall be construed as limiting the ability of Purchaser to (x) respond to unsolicited requests by customers of the Retained Businesses; (y) service customers of the Retained Businesses who also, as of the date hereof, are customers of Purchaser or its Affiliates; or (z) offer or continue to offer Banking Related Services that are similar to the Retained Businesses.
(e) During the period beginning on the date hereof and ending on the first (1st) anniversary of the Primary Closing Date, the Seller Entities and their respective Affiliates shall not, directly or indirectly, (i) use any information regarding the Transferred Businesses in their possession as a result of the transactions contemplated by this Agreement, including as part of the books and records that are retained by the Seller Entities, to solicit or engage in other efforts directed to or targeted at any customer or customers of the Transferred Businesses with respect to providing Banking Related Services similar to those of the Transferred Businesses or (ii) use such information to take any other actions that are designed to induce any customer of the Transferred Business to transfer any portion of such customer’s Relationships with Purchaser with respect to the Transferred Businesses to a similar business of Seller Entities or their Affiliates; provided that nothing in this Section 7.9(e) shall be construed as limiting the ability of the Seller Entities to (x) respond to unsolicited requests by customers of the Transferred Business; or (z) offer or continue to offer Banking Related Services that are similar to the Transferred Business except to the extent otherwise restricted in Section 7.9.
(f) Each of Purchaser and the Seller Entities understands and acknowledges that (i) it would be difficult to calculate damages to the Seller Entities or Purchaser, as applicable, from any breach of the obligations of Purchaser or the Seller Entities, as applicable, under this Section 7.9, (ii) injury to Purchaser or the Seller Entities, as applicable, from any such breach would be irreparable and impossible to measure and (iii) the remedy at law for any breach or threatened breach of this Section 7.9 would therefore be an inadequate remedy and, accordingly, Purchaser and the Seller Entities shall, in addition to all other available remedies (including, without limitation, seeking such damages as either can show it has sustained by reason of such breach and/or the exercise of all other rights either has under this Agreement), be entitled to seek injunctive relief, specific performance and other equitable remedies without the necessity of showing actual damages or posting bond.
(g) Purchaser and the Seller Entities understand and acknowledge that the restrictive covenants and other agreements contained in this Section 7.9 are an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder essential part of less than two (2%) percent this Agreement and the transactions contemplated hereby and thereby. It is the intention of the outstanding voting shares parties that, if any of any publicly the restrictions or covenants contained herein are held company)to cover a geographic area or to be for a length of time that is not permitted by Applicable Law, or whether on Executive's own behalf is in way construed to be too broad or on behalf to any extent invalid, such provision shall not be construed to be null, void and of any other person or entity or otherwise howsoeverno effect, during the Employment Period and thereafter but to the extent described belowthat such provision would then be valid or enforceable under Applicable Law, within such provision shall be construed and interpreted or reformed to provide for a restriction or covenant having the Territory:maximum enforceable geographic area, time period and other provisions as shall be valid and enforceable under Applicable Law.
(1h) EngageFor the avoidance of doubt, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business none of the Company;
(2) Recruit, solicit or hire, or attempt restrictions imposed by applicable subsections of this Section 7.9 shall apply to recruit, solicit or hire, any employee, or independent contractor Person that is an Affiliate of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is a party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with if such customer or Person ceases to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf be an Affiliate of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Company.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (First Niagara Financial Group Inc)
Non-Competition and Non-Solicitation. (a) Executive agrees The Sellers and acknowledges the Management Shareholders hereby acknowledge, recognize and confirm that the Confidential Information nature of the Business is highly competitive, that Executive has already received and the covenants herein contained in this Section are part of the bargained for consideration without which Purchaser would not consummate the Contemplated Transactions, that the covenants herein will receive is valuable to the Company not deprive any Seller or any Management Shareholder of a means by which they may earn a livelihood or otherwise cause undue hardship and that its protection and maintenance constitutes this Section is a legitimate business interest of the Company, to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary means by which Purchaser must be able to protect its legitimate business interests and do not impose undue hardship the goodwill and the customer and supplier relationships of the Business to be acquired by it in connection with the Contemplated Transactions. Accordingly, the Sellers and the Management Shareholders agree that neither any Seller nor any Management Shareholder will directly or burdens on Executive. Executive also acknowledges that indirectly during the products and services developed eight (8) year period following the Closing Date (the “Noncompetition Period”) (i) engage in or provided prepare to engage in any Competing Business, whether such engagement is as an officer, director, proprietor, employee, partner, manager, member, investor (other than as a passive investor in less than five percent (5%) of the outstanding capital stock of a publicly traded corporation), consultant, advisor, agent, representative, independent contractor, creditor or otherwise anywhere in the geographic areas encompassed by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers present boundaries of the current states and clients in and throughout territories of the United States and the additional territories listed on Schedule 4.10 (the “Restricted Territory”); or (ii) assist others in engaging in or preparing to engage in any Competing Business in the manner described in clause (i) of this Section 4.10; or (iii) solicit the business of, or trade with, any customers or prospective customers of any Seller in the Restricted Territory with respect to the extent the Company comes to operate, either directly products sold or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States provided by such Seller during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall not, without the prior written consent of the Company, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent of year period immediately preceding the outstanding voting shares of any publicly held company)Closing Date; or (iv) induce, or whether on Executive's own behalf or on behalf of otherwise solicit, any other person or entity customers with whom any Seller has done business to terminate or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
curtail or impair their business relationship with Purchaser or Purchaser’s Affiliates; or (1v) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hire, induce any individual who is an employee of Purchaser at that time to terminate his or attempt her employment with Purchaser or offer employment to recruit, solicit or hire, any employee, hire or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not engage any such employee individual. Notwithstanding the foregoing, Section 4.10 shall be of no force and effect in the event any Seller or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of Shareholder purchases the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business Intellectual Property Assets pursuant to a person other than sale in foreclosure resulting from a default on the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company Note and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the CompanySecurity Agreement.
Appears in 1 contract
Non-Competition and Non-Solicitation. (a) Executive agrees and acknowledges that For a period from the Confidential Information that Executive has already received and will receive is valuable to date hereof through one (1) year following the Company and that its protection and maintenance constitutes a legitimate business interest termination of the Company, to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term employment of the Employment PeriodExecutive for any reason, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall will not, without the prior written consent of the Company, directly or indirectly, in any capacity whatsoever, including, without limitation, indirectly (whether as an employeeowner, employer, consultant, principalproprietor, partner, shareholder, officer, director employee, independent contractor, director, joint venturer, consultant, lender or any other individual or representative capacity investor (other than a holder in connection with the Employment Agreement) engage in the Prohibited Business; provided, that, the Executive may at any time during such one-year period surrender all shares of less than two Parent Common Stock received pursuant to paragraph 10 which are then owned by him or any of his controlled affiliates to the Company and upon doing so, the non-competition period will continue for only three (2%3) percent months thereafter. For purposes of this Section 4.01, the “Prohibited Business” means providing any product or service in connection with fantasy sports league events or Internet online fantasy sports, in the geographic areas where the Company engages in business as of the outstanding voting shares date hereof (it being understood that the Executive providing services to an entity whose primary business is not the Prohibited Business shall not violate this Section 12(a) unless the Executive’s primary duties are providing services to that Prohibited Business). The parties agree that this Section 12(a) shall not prohibit the ownership by the Executive, solely as an investment, of any securities of a person engaged in the Prohibited Business if (i) the Executive is not an “affiliate” (as such term is defined in Rule 405 promulgated under the Securities Act) of the issuer of such securities, (ii) such securities are publicly held company)traded on a national securities exchange and (iii) the Executive does not, directly or whether on Executive's indirectly, beneficially own behalf more than 5% of the class of which such securities are a part. The Executive acknowledges and agrees that the limitations imposed by this Section 12(a) as to time, geographical area, and scope of activity being restrained are reasonable and do not impose a greater restraint than is necessary to protect the goodwill or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business interests of the Company;.
(2b) RecruitDuring the Restricted Period, the Executive shall not, directly or indirectly, (i) discourage any person from accepting employment with the Company or any Affiliate of the Company or (ii) hire or solicit the employment or hireservices of, or cause or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company cause to leave the employment (or independent contractor relationship) thereof, whether service of the Company or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer Affiliate of the Company, with whom any person who or which is employed by, or otherwise engaged to perform exclusive services for, the Company had significant contact during Executive’s employment by or any Affiliate of the Company (whether under this Agreement in the capacity of employee, consultant, independent contractor or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Company.
Appears in 1 contract
Sources: Executive Employment Agreement (Eclips Media Technologies, Inc.)
Non-Competition and Non-Solicitation. (a) Executive agrees For a period beginning on the Effective Date and acknowledges ending 18 months after the date on which the Employee ceases to be employed by the Company for any reason whatsoever, the Employee, directly or indirectly, whether as owner, sole proprietor, partner, shareholder, director, member, consultant, agent, founder, co-venturer or otherwise, will: (i) not engage, participate or invest in any business activity anywhere in the world which develops, manufactures or markets products or performs services which are competitive with the products or services of the Company at the time of the Employee's termination, or products or services which the Company has under development or for which are the subject of active planning at the time of the Employee's termination; provided, however, that the Confidential Information that Executive has already received and will receive is valuable to Employee, may own as a passive investor, publicly-traded securities of any corporation which competes with the business of the Company so long as such securities do not, in the aggregate, constitute 8 more than 5% of any class of outstanding securities of such corporations; (ii) refrain from hiring or attempting to employ, recruiting or otherwise soliciting, inducing or influencing any person to leave employment with the Company or its resellers or distributors and that its protection and maintenance constitutes a legitimate (iii) refrain from directly or indirectly soliciting competitive business interest from any of the Company's customers and users, to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship resellers or burdens distributors on Executive. Executive also acknowledges that the products and services developed or provided by behalf of any business which competes the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants The Employee understands that he shall not, without the prior written consent of restrictions set forth in this Section 11 are intended to protect the Company's interest in its "proprietary information" (as defined in the Confidential Information Agreement) and establish customer relationships in good will, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:agrees that such restrictions are reasonable and appropriate for this purpose.
(1c) Engage, own, manage, operate, control, The Employee agrees that it would be employed by, consult for, participate in, or be connected in difficult to measure any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment damages caused by the Company (whether under this Agreement or otherwise), business which might result from any breach by the Employee of the kind promises set forth in this Section 11, and that in any event money damages would be an inadequate remedy for any such breach. Accordingly, the Employee agrees that if the Employee breaches, or competitive with the business done by proposes to breach, any portion of this Section 11, the Company with such customer shall be entitled, in addition all other remedies that it may have, to injunction or other appropriate equitable relief to persuade or attempt to persuade restrain any such customer breach without showing or proving any actual damage to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Company.
Appears in 1 contract
Non-Competition and Non-Solicitation. (a) Executive agrees For the period beginning on the Closing Date and ending on the fourth anniversary of the Closing Date (the “Restricted Period”), the Sellers shall not, and shall not permit their Subsidiaries to, manufacture, market, sell, install or service automatic doors in the United States, Canada or any other country in which any Non-US Seller conducts the Business (each such activity in the relevant territories, a “Restricted Business”); provided, however, that the foregoing shall not restrict a Seller or any of its Affiliates from:
(i) (A) owning and operating the Excluded Assets and (B) engaging in, owning any interest in, or controlling, managing or operating any Person engaging in, any business operated by the Sellers as of the date hereof that is not the Business, including the Excluded Business;
(ii) engaging in any transaction, including any acquisition, and, pursuant to such acquisition, continuing to hold or own any business or Person engaged in any Restricted Business if such Restricted Business accounts for less than 15% of the consolidated annual revenues of the acquired business or acquired Person(s), taken as a whole, globally in the year prior to such acquisition;
(iii) acquiring and/or owning, directly or indirectly, an interest of no greater than 15% of the outstanding equity securities in, and thereafter participating in the business of, any Person to the extent such equity securities or aggregate ownership do not give Sellers and their Subsidiaries the right to designate a majority, or such higher amount constituting a controlling number, of the members of the board of directors (or similar governing body) of such Person; provided that such investment is undertaken by the ▇▇▇▇▇▇▇ Ventures group;
(iv) investing in any fund in which a Seller and/or its Subsidiaries have no discretion with respect to the investment strategy of such fund; or
(v) exercising its rights or complying with its obligations under this Agreement or any of the Ancillary Agreements.
(b) Notwithstanding the foregoing, in the event any Seller or any of its Subsidiaries acquires, merges with or enters into a joint venture or other business combination or transaction with any business or Person, the acquisition of which, or combination with, such business or Person following such acquisition or combination, would violate this Section 6.12 (but for this sentence), such Seller and its Subsidiaries shall not be in violation of this Section 6.12 if within one year of the consummation of such transaction, such Seller or such Subsidiaries divest or enter into a definitive agreement to divest (in whole or in part) the Restricted Business with the result that the Restricted Business would account for less than 15% of the consolidated annual revenues of such acquired business or acquired Person(s), taken as a whole, following such divestment. For the avoidance of doubt and subject to the immediately preceding sentence, nothing in this Section 6.12 shall, or shall be construed to, limit or prohibit the ability of the Sellers or any of their respective Subsidiaries to consummate any acquisition, merger, business combination, joint venture or similar transaction anywhere in the world.
(c) During the Restricted Period, Sellers shall not, and each Seller shall cause each of its Subsidiaries not to, directly or indirectly, actually or attempt to hire, solicit or assist in the solicitation of any individual who on the Closing Date is an employee of the Business with a title of “director” or “senior manager” (or equivalent role) or higher or such individual is a service and installation technician, unless such individual (i) is no longer (and has not for the prior three months been) in the employ of the Business, (ii) approaches a Seller or its Subsidiaries on an unsolicited basis or (iii) is contacted or solicited through general non-targeted solicitation or advertisement in a newspaper, online or through an employment agency.
(d) Each of the parties understands and acknowledges that immaterial, de minimis or inadvertent violations of this Section 6.12 by a Seller or its Subsidiaries shall not be deemed a breach of this Section 6.12.
(e) Notwithstanding the Confidential Information foregoing, this Section 6.12 shall not restrain or prohibit any activities, actions or conduct of any Person that Executive has already received and will receive is valuable to the Company and that its protection and maintenance constitutes not an Affiliate of a legitimate business interest of the Company, to be protected by the non-competition restrictions set forth herein. Executive Seller.
(f) Each Seller hereby agrees and acknowledges that the non-competition restrictions set forth herein compete obligations and the non-solicitation obligations under this Section 6.12 are reasonable and necessary equitable as to the subject matter, and do not impose undue hardship or burdens on Executivethe rights and benefits held by the Sellers under this Agreement are adequate for the restrictions contained therein, and the sufficiency of the same is acknowledged by the Sellers. Executive also acknowledges Further, the Sellers acknowledge that the products and services developed or provided by a violation of this Section 6.12 may cause the Company, its affiliates and/or its clients the Business, the Buyer and their respective Affiliates irreparable harm which may not be adequately compensated by money damages. The Sellers therefore agree that in the event of any actual or customers are threatened violation of this Section 6.12, the Buyer shall be entitled, in addition to other remedies that it may have, to a temporary restraining order and to preliminary and final injunctive relief against a Seller or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement such Affiliate of a distributor or joint or co-venturer, or sell a significant amount Seller to prevent any violations of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customersthis Section 6.12.
(b) Executive hereby agrees and covenants that he shall not, without the prior written consent of the Company, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Company.
Appears in 1 contract
Sources: Transaction Agreement (Allegion PLC)
Non-Competition and Non-Solicitation. (a) The Executive understands and recognizes that his services to the Company are special and unique and that in the course of performing such services the Executive will have access to and knowledge of Confidential and Proprietary Information (as defined in Section 6) and the Executive agrees that, during the Term and for a period of six (6) months (or twelve (12) months if the Executive’s employment is terminated by the Company during the Term for Cause (as defined below) or by Executive during the Term without Good Reason (as defined below)) thereafter, he shall not in any manner, directly or indirectly, on behalf of himself or any person, firm, partnership, joint venture, corporation, limited liability company or other business entity (“Person”), enter into or engage in the development of any therapeutic agent_ which targets the same or similar mechanisms and which is directly or indirectly competitive with the Company Business, either as an individual for his own account, or as a partner, joint venturer, owner, executive, employee, independent contractor, principal, agent, consultant, salesperson, officer, director or shareholder of a Person in a business competitive with the Company within the geographic area of the Company’s Business, which is deemed by the parties hereto to be worldwide; provided; however, if a Person’s business has multiple lines or segments, some of which are not competitive with the Company’s Business, nothing herein shall prevent the Executive from being employed by, working for or assisting that line or segment of a Person’s business that is not competitive with the Company’s Business. The Executive acknowledges that that, due to the unique nature of the Company’s Business, the loss of any of its clients or business flow or the improper use of its Confidential and Proprietary Information that Executive has already received could create significant instability and will receive is valuable cause substantial damage to the Company and that its protection affiliates and maintenance constitutes therefore the Company has a strong legitimate business interest in protecting the continuity of its business interests and the restriction herein agreed to by the Executive narrowly and fairly serves such an important and critical business interest of the Company. Notwithstanding the foregoing, nothing contained in this Section 7(a) shall be deemed to be protected by prohibit the non-competition restrictions set forth herein. Executive agrees and acknowledges that from acquiring or holding, solely for investment, publicly traded securities of any corporation or other entity, some or all of the non-competition restrictions set forth herein activities of which are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that competitive with the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent business of the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers locatedso long as such securities do not, in areas the aggregate, constitute more than three percent (3%) of any class or series of outstanding securities of such corporation or other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customersentity.
(b) During the Term and for a period of twelve (12) months thereafter (or six (6) months in the case of clause (b)(ii) below), the Executive hereby agrees and covenants that he shall not, directly or indirectly, without the prior written consent of the Company:
(i) solicit or induce any employee of the Company or any of its subsidiaries or Two River Group Holdings, LLC (“Two River”) to leave the employ of the Company or such subsidiaries or Two River; or
(ii) solicit the business of any agent, client or customer of the Company or any of its subsidiaries with respect to products or services similar to and competitive with those provided or supplied by the Company or any of its subsidiaries.
(c) The Executive and Company mutually agree that both during the Term and at all times thereafter, neither party shall directly or indirectlyindirectly disparage, whether or not true, the name or reputation of the other party, and in the case of the Company including any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or material shareholder of the Company. Notwithstanding the foregoing, nothing in this Agreement shall preclude the parties hereto or their successors from making truthful statements in the proper performance of their jobs or that are required by applicable law, regulation or legal process, and the parties shall not violate this provision in making truthful statements in response to disparaging statements made by the other party.
(d) In the event that the Executive materially breaches any provisions of Section 6 or this Section 7, then, in addition to any other individual or representative capacity rights which the Company may have, the Company shall be entitled to cease making any payments to the Executive under Section 11 hereof, cancel any options that vested under Section 11 hereof, recover any amounts paid under Section 11 hereof (including amounts received by the Executive in respect of any options that were vested under Section 11) other than a holder payments in respect of less than two Accrued Obligations, and to seek injunctive relief to enforce the restrictions contained in such Sections which injunctive relief shall be in addition to any other rights or remedies available to the Company under the law or in equity.
(2%e) percent The right and remedy enumerated in Section 7(d) shall be independent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf and shall be in addition to and not in lieu of any other person or entity or otherwise howsoever, during the Employment Period rights and thereafter remedies available to the extent described below, within Company at law or in equity. If any of the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate incovenants contained in this Section 7, or be connected in any manner with the ownership, management, operation or control part of any business in competition with of them, is hereafter construed or adjudicated to be invalid or unenforceable, the business same shall not affect the remainder of the Company;
(2) Recruit, solicit covenant or hire, covenants or attempt rights or remedies which shall be given full effect without regard to recruit, solicit or hire, the invalid portions. If any employee, or independent contractor of the Company covenants contained in this Section 7 is held to leave the employment (be invalid or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer unenforceable because of the Companyduration of such provision or the area covered thereby, with whom the Company had significant contact during Executive’s employment by parties agree that the Company (whether under this Agreement or otherwise), business of court making such determination shall have the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or power to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf duration and/or area of such other person; or
(4) Interfere with any relationship, contractual provision and in its reduced form such provision shall then be enforceable. No such holding of invalidity or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer unenforceability in one jurisdiction shall bar or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of affect the Company’s right to the relief provided in this Section 7 or otherwise in the courts of any other state or jurisdiction within the geographical scope of such covenants as to breaches of such covenants in such other respective states or jurisdictions, such covenants being, for this purpose, severable into diverse and independent covenants.
(f) In the event that an actual proceeding is brought in equity to enforce the provisions of Section 6 or this Section 7, the Executive shall not urge as a defense that there is an adequate remedy at law nor shall the Company be prevented from seeking any other remedies which may be available. The Executive agrees that he shall not raise in any proceeding brought to enforce the provisions of Section 6 or this Section 7 that the covenants contained in such Sections limit his ability to earn a living.
(g) The provisions of this Section 7 shall survive any termination of this Agreement.
Appears in 1 contract
Non-Competition and Non-Solicitation. In consideration of Parent's and Acquisition Corp.'s agreement to enter into this Agreement and the Acquisition Agreement, and as a condition thereto, each Principal Shareholder covenants and agrees as follows:
(a) Executive agrees and Each Principal Shareholder hereby acknowledges that it is or may be familiar with the Confidential Information Companies' trade secrets and with other confidential information and such Principal Shareholder acknowledges and agrees that Executive has already received and will receive is valuable to Parent, Acquisition Corp., the Company and that its protection and maintenance constitutes a legitimate their respective Subsidiaries would be irreparably damaged if it were to provide services to or otherwise participate in the business interest of the Company, to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent any person competing with the Company comes to operate, either directly or through the engagement any of its Subsidiaries in a distributor or joint or co-venturer, or sell similar business and that any such competition by such Principal Shareholder would result in a significant amount loss of its products and services to customers locatedgoodwill by Parent, in areas other than the United States during the term of the Employment PeriodAcquisition Corp., the definition of Territory shall be automatically expanded to cover such other areas), Company and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customerstheir Subsidiaries.
(b) Executive hereby agrees From the date hereof through and covenants that he shall notincluding the date eighteen months after the Offer Payment Date, without the prior written consent no Principal Shareholder or any of the Companyits affiliates shall, directly or indirectly, own any interest in, manage, control, participate in any capacity whatsoever, including, without limitation, (whether as an officer, director, employee, employer, consultant, principal, partner, shareholderagent, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), consult with, render services for, or in any other manner engage, anywhere in the Restricted Territories in any business engaged directly or indirectly the ownership or operation of the kind retail clothing stores or competitive with the business done other sales outlets providing similar clothing goods and services as those provided by the Company with and its Subsidiaries; PROVIDED THAT nothing herein shall prohibit (x) such customer Principal Shareholder or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to affiliates from being a person other passive owner of not more than the Company, provide any services (2% of the kind or competitive with outstanding stock of any class of a corporation which is publicly traded so long as none of such Persons has any active participation in the business of the Companysuch corporation or (y) for such customerJeffrey A. Goodfriend from owning any interest in, managing, or have c▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ting in, consulting with, rendering services for, or engaging in any discussions regarding business; PROVIDED THAT during such eighteen-month period Jeffrey A. Goodfriend shall not, directly or indirectly, own or h▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇er any such service with such customer, on behalf of such retail clothing stores or other person; or
(4) Interfere with any relationship, contractual or otherwise, between sales outlets providing similar clothing goods and services as those provided by the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business Subsidiaries with the Company or otherwise interfere in any way with the business of the Company.more than 20 stores. From the
Appears in 1 contract
Sources: Support Agreement (Prentice Capital Management, LP)
Non-Competition and Non-Solicitation. (a) Executive agrees and acknowledges that During the Confidential Information that Executive has already received and will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest of the Company, to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Restricted Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall not, without the prior written consent of the Companyand shall cause its Affiliates not to, directly or indirectlyindirectly through any Person or contractual arrangement:
(i) manage, operate, advise or consult for, render services to, run, control or externally manage any Restricted Business (other than any real estate held or owned by the Executive in his personal capacity or any trust controlled by such individual whose beneficiaries are members of his family whether acquired prior to or after the date hereof, in any capacity whatsoevereach case as set forth on Schedule I in the Restricted Territory; provided, includinghowever, without limitation, that the restrictions contained in this Agreement shall in no way be deemed to restrict the Executive or its Affiliates from (i) serving as an employee, employer, consultant, principal, partner, shareholder, officer, director or other service provider of any other individual Group Company (or representative capacity performing his duties under this Agreement); (other ii) owning, directly or indirectly (x) up to 4.9 % of any class of securities of any public entity or (y) any passive investment in any entity that the Executive does not control; (iii) investing equity of no more than a holder the amount set forth on Schedule I of less than two (2%) percent this Agreement in real estate partnerships that own mixed use and shopping center real estate provided, that such activities do not conflict with the terms of the outstanding voting shares of any publicly held company), this Agreement or whether on the Executive's own behalf ’s fiduciary duties to the Company; or on behalf of any other person (iv) working as an employee or entity acting as a consultant or otherwise howsoever, during the Employment Period and thereafter contractor to a Competitive Entity to the extent described belowsuch activities do not conflict with the terms of this Agreement; provided, within that in each case the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate Executive does not personally engage in, or be connected provide any services for use in, the Restricted Business and that the Executive performs services exclusively in any manner with the ownershipa division, management, operation subsidiary or control of any business in competition with the business affiliated entity of the CompanyCompetitive Entity that does not materially engage in the Restricted Business; provided that Executive shall not be restricted from the matter set forth on or are set forth on Schedule I;
(2ii) Recruitemploy, solicit or hire, enter into an agency or attempt consulting relationship with or recruit or solicit for employment any employee of a Group Company (“Restricted Employees”); provided, that the foregoing shall not apply to recruit(i) Restricted Employees who ceased to be employed by a Group Company at least ninety (90) days prior to any solicitation by, solicit and the commencement of any discussions with, the Executive or hire, any employee, of its Affiliates; (ii) any general solicitations not targeted at Restricted Employees (including through the use of recruiting firms or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt advertisements in any manner newspaper, magazine, trade publication, electronic medium or other media) or any hiring as a result thereof; and (iii) the assistant and secretary assigned to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive work with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do Executive during his employment with the Company, notwithstanding this Agreement or if any other agreement to the contrary, it is acknowledged and agreed that Executive is a direct or indirect member, owner, director or officer of AR Global Investments, LLC and certain other entities that do not engage in activities that are violative of Section 8(a)(ii) of this Agreement and that such customer elects individuals shall be permitted to move its continue to engage in such business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other personactivities; or
(4iii) Interfere with encourage any relationshipcustomer, contractual Prospective Customer or otherwisesupplier who is a customer, between the Company and Prospective Customer or supplier of any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Group Company to discontinue terminate or reduce its business adversely modify any relationship with a Group Company, provided that in each case the Company Executive had or otherwise interfere in any way with the business should have had knowledge of the Companysuch Prospective Customer.
Appears in 1 contract
Non-Competition and Non-Solicitation. (a) Executive agrees and acknowledges that For a three year period following the Confidential Information that Executive has already received and will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest Closing Date, each of the Company, to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment PeriodSeller, the definition of Territory shall be automatically expanded to cover such other areas), Selling Subsidiary and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he their respective Affiliates shall not, without the prior written consent of the Company, directly or indirectly, (a) engage in activities which compete with the Business as currently conducted, (b) entice, induce or solicit any customer of or licensor to the Business to cease in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director extent to be a customer of or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter licensor to the extent described belowBusiness or (c) entice, within induce or solicit any employee or consultant of Buyer, Parent or their respective subsidiaries with respect to the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company Business to leave the employment of, or no longer render services to, Buyer, Parent or any of their respective subsidiaries. Notwithstanding anything to the contrary contained herein, (i) nothing contained herein shall be construed to prevent Seller and its Affiliates from selling the products and services currently sold by them (other than the Services) or independent contractor relationshipscanning services relating to Seller's and its subsidiaries' electronic data interchange or EDI services, production messaging services, desktop fax, document capture and management and other fax-related services and (ii) thereofthis Section 7.11 shall not apply to the activities of any Person that, whether by merger, consolidation, stock purchase or not asset purchase, (A) acquires Seller, the Selling Subsidiary or any such employee of their respective Affiliates or independent contractor is party to an employment agreement;
(3) Attempt in the business or assets of any manner to solicit or accept from any customer of the Companyforegoing or (B) after the first anniversary of the Closing Date, with whom is acquired by Seller, the Company had significant contact during Executive’s employment by Selling Subsidiary or any of their respective Affiliates; provided, however, that, in the Company case of clause (whether under this Agreement or otherwiseB), (x) the revenues of such acquired Person relating to any portion of such Person's business of the kind or which are competitive with the business done by Business cannot exceed twenty percent (20%) of such Person's revenues for the Company with twelve (12) month period as of the end of the fiscal quarter of such customer or Person ending immediately prior to persuade or attempt the acquisition of such Person, (y) Seller must have used its reasonable commercial efforts to persuade any not purchase the portion of such customer to cease to do business or to reduce the amount of Person's business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or is competitive with the business Business and (z) if such portion of the Company) for such customerbusiness is acquired notwithstanding its compliance with clause (y), or have any discussions regarding any such service with such customer, on behalf Seller must use its reasonable commercial efforts to divest the portion of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its Person's business which is competitive with the Company or otherwise interfere in any way with the business Business within twelve (12) months of the Companyits acquisition.
Appears in 1 contract
Non-Competition and Non-Solicitation. (ai) Executive agrees and ▇▇. ▇▇▇ acknowledges that in ▇▇. ▇▇▇’▇ position of Chairman of the Confidential Information Board, ▇▇. ▇▇▇ occupies a position of trust and confidence. ▇▇. ▇▇▇ understands that Executive the following restrictions may limit ▇▇. ▇▇▇’▇ ability to earn a livelihood in a business which, directly or indirectly, competes with the Company. However, ▇▇. ▇▇▇ hereby agrees that he has already received and will receive is valuable sufficient consideration and other benefits as an employee or other service provider of the Company to clearly justify such restrictions which, in any event, given ▇▇. ▇▇▇’▇ skills and ability will not prevent ▇▇. ▇▇▇ from earning a living. ▇▇. ▇▇▇ acknowledges that all restrictions contained in Section 3(d) are reasonable and valid for the adequate protection of the legitimate business interests and goodwill of the Company and that its protection and maintenance constitutes a legitimate business interest of the Company, to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers no broader than are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, protect such interests and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customersgoodwill.
(bii) Executive hereby agrees and covenants that he ▇▇. ▇▇▇ shall not, not (without the prior written consent of the CompanyBoard) during the Term and for twelve (12) months thereafter, whether directly or indirectly, either alone or in conjunction with any individual, firm, corporation, association or other entity (except for the Company), whether as principal, agent, stockholder or in any other capacity whatsoever carry on, or be engaged in, or have any financial or other interest in or be otherwise commercially involved in any endeavor, activity or business or which is in whole or in part competitive with any of the businesses carried on by the Company within the respective territories in which such businesses are then carried on (except for any equity share investment in a public company whose shares are listed on a recognized stock exchange where such share investment does not in the aggregate exceed 5% of the issued equity shares of such company).
(iii) ▇▇. ▇▇▇ shall not (without the prior written consent of the Board) during the Term and for twelve (12) months thereafter, whether directly or indirectly, either alone or in conjunction with any individual, firm, corporation, association or other entity (except for the Company), whether as a principal, agent, stockholder or in any other capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer or prospective customer for the purpose of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement A) persuading or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt attempting to persuade any such customer to cease to do doing business or to reduce curtail the amount of business which such customer or prospective customer has customarily done conducted or might do contemplating conducting with the CompanyCompany (including any subsidiary, including but not limited to ICS, or if any affiliated corporation), whether or not the relationship between the Company and such customer elects or prospective customer was originally established in whole or in part through the efforts of ▇▇. ▇▇▇; or (B) to move its solicit the business of such customer or prospective customer in respect to a person other than the Company, provide any products or services (of the kind or which are competitive with the business of the Company) for such customerCompany (including any subsidiary, including but not limited to ICS, or have any discussions regarding any such service with such customer, on behalf of such other personaffiliated corporation); or
(42) Interfere with solicit or attempt to solicit or assist any relationship, contractual individual or otherwise, between entity to solicit the Company and any other party, including, without limitation, any supplier, distributor, co-venturer employment or joint venturer engagement of or otherwise entice away from the employment of the Company (including any subsidiary, including but not limited to discontinue ICS, or reduce its business with any affiliated corporation) any employee of the Company (including any subsidiary, including but not limited to ICS, or otherwise interfere any affiliated corporation).
(iv) The Parties hereby agree that any breach by ▇▇. ▇▇▇ of this Section 3(d) shall be deemed to cause the Company irreparable harm that cannot adequately be compensated for in any way with damages and that the business of the CompanyCompany in addition to all other remedies, shall be entitled to injunctive or other equitable relief to restrain such breach.
Appears in 1 contract
Sources: Transition Agreement (Integrated Device Technology Inc)
Non-Competition and Non-Solicitation. (a) Executive agrees and acknowledges that the Confidential Information that Executive has already received and will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest of the CompanyIn consideration of, to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas among other than the United States during the term of the Employment Periodthings, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration Merger Consideration set forth in this Agreement, and with the non-competition restrictions set forth below are reasonable understanding that the Principals will be privy to the trade secrets concerning the methods and necessary to maintain the value practices of the Confidential Information ofSub, and to protect the goodwill and other legitimate business interests ofSub from unauthorized disclosure of such trade secrets, during the Companyperiod of each Principal's employment with Sub until six months following the termination of such Principal's employment with Sub for any reason, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall each Principal will not, without the unless acting pursuant hereto or with Sub's prior written consent of the Companyconsent, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, indirectly own, manage, operate, controlfinance, be employed byjoin, consult for, control or participate in, or be connected in any manner with the ownership, management, operation operation, financing or control of, or serve as an officer, director, employee, partner, principal, agent, representative or consultant of or to any business or enterprise engaged in any business or activities which compete with any business engaged in by Sub and which business has clients or customers of Sub or is soliciting or has solicited Sub clients or customers during the one year period prior to termination of this Agreement (any such competitive enterprise, a "COMPETITOR"); PROVIDED, however, that this provision shall not prohibit the ownership by Principal of not more than 5% of any business class of securities of such Competitor. In the event that the provisions of this Section should ever be adjudicated to exceed the time, geographic, service or product limitations permitted by applicable law in competition any jurisdiction, then such provisions shall be deemed reformed in such jurisdiction to the maximum time, geographic, service or product limitations permitted by applicable law.
(b) In consideration of, among other things, the Merger Consideration set forth in this Agreement, during the period of each Principal's employment with Sub until one year following the termination of the Principal's employment with Sub for any reason, each Principal will not, unless acting with the business of the Company;
(2) RecruitSub's prior written consent, solicit directly or hireindirectly, influence or attempt to recruitinfluence customers or suppliers of the Sub or any of its affiliates, solicit or hire, to divert their business to any employeeCompetitor, or independent contractor perform any services for any customers of the Company to leave the employment (Sub or independent contractor relationship) thereofany of its affiliates, whether or not any if such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or are competitive with the business of the CompanySub or its affiliates.
(c) In consideration of, among other things, the Merger Consideration set forth in this Agreement, during the period of each Principal's employment with Sub until six months following the termination of the Principal's employment with Sub for such customerany reason, each Principal will not, unless acting with the Sub's prior written consent, directly or have indirectly, solicit, recruit or hire any discussions regarding employee of the Sub or any of its affiliates for the purpose of being employed by Principal or by any person or entity on whose behalf Principal is acting as an agent, representative or employee and that Principal will not convey any such service confidential information or trade secrets about other employees of the Sub or any of its affiliates to any other person. For purposes of this Section 6.6(a), (b), and (c), the term "customer" shall include any person, business or entity that is currently a customer or client of the Sub or any affiliate or has been a customer or client within one (1) year. For purposes of this Section 6.6(b) and (c), any restriction with respect to a client, supplier or employee of an affiliate of Sub shall only be enforceable to the extent that such Principal had any contact with such customerperson during the Principal's term of employment with Sub.
(d) This Section 6.6 shall survive the Closing and the termination or expiration of the Principal's employment with the Company and shall be fully enforceable thereafter. If it is determined by a court of competent jurisdiction in any state that any restriction in this Section 6.6 is excessive in duration or scope or is unreasonable or unenforceable under the laws of that state, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the maximum extent permitted by the law of that state. Further, the Principals and Sub agree that money damages would not be a sufficient remedy for any breach of this Agreement and that the Sub shall be entitled to seek injunction or other equitable relief to remedy or prevent any breach or threatened breach of this Section 6.6. Such remedy shall not be the exclusive remedy for any breach of this Section 6.6, but shall be in addition to all other rights and remedies available at law or in equity. The Principals, on behalf the one hand, and the Parent and Sub, on the other hand, acknowledge that the obligations of such other person; or
(4) Interfere with any relationship, contractual or otherwise, the Principals in this Section 6.6 differ from the obligations set forth in the Employment Agreements between the Company and any other partythe Principals, includingin the form attached as EXHIBIT H, without limitation, any supplier, distributor, co-venturer or joint venturer and that such differences should not affect the full enforceability of the Company to discontinue or reduce its business with provisions herein and in the Company or otherwise interfere in any way with the business of the CompanyEmployment Agreements.
Appears in 1 contract
Non-Competition and Non-Solicitation. (a) The Executive agrees and acknowledges that the Company has invested substantial time, money and resources in the development and retention of its Inventions, Confidential Information (including trade secrets), customers, accounts and business partners, and further acknowledges that during the course of the Executive's employment with the Company the Executive has already received will have access to the Company's Inventions and Confidential Information (including trade secrets), and will receive is valuable be introduced to the Company existing and that its protection prospective customers, accounts and maintenance constitutes a legitimate business interest partners of the Company, to be protected by the non-competition restrictions set forth herein. The Executive acknowledges and agrees and acknowledges that the non-competition restrictions set forth herein are reasonable Company's business is international in scope. The Executive acknowledges and necessary agrees that any and do not impose undue hardship all "goodwill" associated with any existing or burdens on Executive. Executive also acknowledges that the products and services developed prospective customer, account or provided by business partner belongs exclusively to the Company, its affiliates and/or its clients including, but not limited to, any goodwill created as a result of direct or customers are indirect contacts or are intended to be soldrelationships between the Executive and any existing or prospective customers, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly accounts or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Periodbusiness partners. Additionally, the definition of Territory shall be automatically expanded to cover such other areas)parties acknowledge and agree that the Executive possesses skills that are special, unique or extraordinary and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information ofCompany depends, in great part, upon his use of such skills on its behalf. In recognition of this, the Executive covenants and agrees that:
A. During the Term, and to protect the goodwill and other legitimate business interests offor a period of six (6) months thereafter, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall may not, without the prior written consent of the Company, directly or indirectly, in any capacity whatsoever, including, without limitation, Board (whether as an employee, employeragent, servant, owner, partner, consultant, principalindependent contractor, partnerrepresentative, shareholder, officer, director stockholder or in any other individual capacity whatsoever), participate in any business that offers products or representative capacity services directly competitive with any of those offered by the Company, or that were under active development by the Company during the Term (other than any such business, a holder "Competitor," any such products or services, "Competitive Services"), provided that nothing herein shall prohibit the Executive from (i) owning securities of less than two (2%) percent corporations which are listed on a national securities exchange or traded in the national over-the-counter market in an amount which does not exceed 3% of the outstanding voting shares of any publicly held company)such corporation or (ii) after termination of his employment (x) participating in the business of a separately managed and operated division, subsidiary or whether on Executive's own behalf affiliate of a Competitor, provided that such division, subsidiary or on behalf affiliate does not offer Competitive Services and the Executive has no business communications with employees of any other person division, subsidiary or entity or otherwise howsoever, during affiliate of the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with Competitor that offers Competitive Services regarding the business of the Company;competitive division, subsidiary or affiliate or (y) becoming affiliated with an entity that is not a Competitor but that is subsequently acquired by or merged with a Competitor, provided that, following such acquisition or merger, he is participating in the business of a separately managed and operated division, subsidiary or affiliate of the Competitor that does not offer Competitive Services and he has no business communications with employees of any division, subsidiary or affiliate of the Competitor that offers Competitive Services regarding the business of the competitive division, subsidiary or affiliate.
B. During the Term, other than in the course of the proper performance of his duties hereunder, and for a period of one (21) Recruityear thereafter, the Executive may not knowingly, directly or indirectly through another individual or individuals, entice, solicit or hire, or attempt encourage any Company employee to recruit, solicit or hire, any employee, or independent contractor leave the employ of the Company to leave the employment (or any independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do sever its engagement with the Company, absent prior written consent to do so from the Board.
C. During the Term, and for a period of one (1) year thereafter, the Executive may not knowingly, directly or if indirectly through another individual or individuals, entice, solicit or encourage any such customer elects customer, prospective customer, vendor, strategic partner or business associate of the Company (i) to move its cease doing business to a person other than with the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business relationship with the Company or otherwise interfere in any way refrain from establishing or expanding a relationship with the business Company or (ii) for the purpose of offering Competitive Services. For purposes of this Agreement, "prospective customer" shall mean those businesses to whom the CompanyCompany submitted a written proposal to perform services during the Term.
Appears in 1 contract
Non-Competition and Non-Solicitation. (ai) Executive agrees and acknowledges that For a three (3) year period following the Confidential Information that Executive has already received and will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest of the Company, to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States Commencement Date (the “TerritoryRestriction Period”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period), the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall Chairman will not, without unless acting with the prior written consent of the CompanyBuckeye GP, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, controljoin, be employed by, consult for, control or participate in, or be connected in any manner with the ownership, management, operation or control control, or be connected as an officer, director, manager, member, employee, partner, principal, agent, representative, consultant or otherwise with or use or permit his name to be used in connection with (each of the foregoing actions being referred to herein as “Participate”), any business or enterprise, anywhere in competition the world (the “Geographic Area”), that competes with the any existing material line of business of the Company;
BPL Entities. It is recognized by the Chairman that the BPL Entities’ business and the Chairman’s connection therewith is or will be involved in activity throughout the Geographic Area, and that more limited geographical limitations on this non-competition covenant are therefore not appropriate. The Chairman also shall not, unless acting with the prior written consent of Buckeye GP, directly or indirectly, during the Restriction Period (21) Recruit, solicit or hiredivert business from, or attempt to recruitconvert any client, solicit account or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the CompanyBPL Entities, with whom whether existing at the Company had significant contact date hereof or acquired during Executivethe Term nor (2) solicit or attempt to hire any employee of the BPL Entities or any person who has been an employee of the BPL Entities at any time during the Term (unless such employee’s employment with a BPL Entity was terminated by such BPL Entity).
(ii) During the Company (whether under this Agreement Restriction Period, if the Chairman becomes aware of an opportunity involving the acquisition or otherwise), development of businesses or assets in any existing material line of business of the kind or competitive BPL Entities (an “Opportunity”), then the Chairman shall, prior to Participating in such Opportunity, present it to the Board in writing. Within five (5) business days after the Board’s receipt of the Chairman’s written notice of such Opportunity, Buckeye GP shall respond to the Chairman in writing as to whether the BPL Entities desire to pursue such Opportunity. If Buckeye GP timely notifies the Chairman that it desires to pursue such Opportunity, then the Chairman shall not pursue such Opportunity with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person enterprise other than the Company, provide BPL Entities for so long as the BPL Entities are actively pursuing such Opportunity.
(iii) The foregoing restriction shall not be construed to prohibit the ownership by the Chairman of less than five percent (5%) of any services (class of securities of any entity which is engaged in any of the kind foregoing businesses having a class of securities registered pursuant to the Securities Exchange Act of 1934, as amended, provided that such ownership represents a passive investment and that neither the Chairman nor any group of persons including the Chairman in any way, either directly or competitive with the business indirectly, manages or exercises control of any such corporation, guarantees any of its financial obligations, otherwise takes any part in its business, other than exercising his rights as a shareholder, or seeks to do any of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Companyforegoing.
Appears in 1 contract
Sources: Non Executive Chairman Agreement (Buckeye Partners, L.P.)
Non-Competition and Non-Solicitation. (a) Executive Each Seller and Equityholder acknowledges and agrees that (i) such Person has received confidential and acknowledges that proprietary information regarding the Confidential Information that Executive has already received and will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest Business, including trade secrets; (ii) Purchasers or Parent may suffer irreparable harm if Sellers or any of the CompanyEquityholders were to divulge such confidential and proprietary information to those in competition with either MMT Party or the Business, or to use such knowledge and information in competition with either MMT Party or the Business; (iii) the goodwill of the Business acquired through the acquisition of the Purchased Assets would be protected by substantially diminished if, at any time during the non-competition Restricted Period, Sellers or the Equityholders were to compete with either MMT Party; (iv) such Seller and Equityholder, as applicable, has determined that it is in his, her or its best interests and to his, her or its financial benefit (through his, her or its direct or indirect ownership of the Purchased Assets) to execute this Agreement and agree to enter into the restrictions set forth herein. Executive agrees in this Section 6.9, given the significant and acknowledges direct or indirect financial benefit that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship will be realized by Sellers or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Companysuch Equityholder, its affiliates and/or its clients or customers are or are intended to be soldas applicable, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of as a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term result of the Employment Period, consummation of the definition transactions contemplated hereby; and (v) the MMT Parties are relying on the covenants and obligations of Territory shall be automatically expanded to cover such other areas), Sellers and that the Territory, scope of prohibited competition, and time duration Equityholders set forth in this Section 6.9 in connection with, and as a condition to the non-competition restrictions set forth below are reasonable MMT Parties’ execution and necessary to maintain delivery of, this Agreement and the value consummation of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customerstransactions contemplated hereby.
(b) Executive hereby agrees and covenants that he shall not, without For a period of three (3) years after the prior written consent Closing Date (the “Restricted Period”):
(i) None of the CompanySellers or any Equityholder will, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director engage or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engageinvest in, own, manage, operate, controlfinance, be employed by, consult for, control or participate in, or be connected in any manner with the ownership, management, operation operation, financing or control of, be retained by, or render services or advice or other aid to, any Person engaged in or planning to become engaged in the Restricted Business in the Restricted Area (other than on behalf of an MMT Party). Notwithstanding the foregoing, without being in violation of this Section 6.9(b)(i), Sellers and the Equityholders may (A) own, directly or indirectly, solely as an investment, securities of any business Person traded on any national securities exchange if Sellers or such Equityholder is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own 5% or more of any class of securities of such Person, (B) own the Equity Securities of Parent; or (C) serve in competition with the business capacity as an employee of the Company;or independent contractor to an MMT Party or any of its Affiliates.
(2ii) RecruitNone of Sellers or any Equityholder will, solicit directly or hireindirectly, (A) cause, induce or attempt to recruit, solicit cause or hire, induce any employee, employee or independent contractor of the Company Business to leave terminate such relationship with the employment Business; (or independent contractor relationshipB) thereof, whether or not solicit any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the CompanyBusiness for hire, with whom the Company had significant contact during Executive’s retention or employment by the Company (whether under this Agreement or otherwise attempt to hire, retain, employ or otherwise engage as an employee, independent contractor or otherwise); or (C) cause, business of the kind or competitive with the business done by the Company with such customer or to persuade induce or attempt to persuade cause or induce any such customer supplier of the Business to cease doing business with an MMT Party or any of its Affiliates or to do business deal with any competitor of the Business; provided that general solicitations of employment published in a journal, newspaper or other publication of general circulation or listed on any internet job site and not specifically directed towards such employees or independent contractors will not be deemed to constitute solicitation for purposes of clauses (A) or (B) of this Section 6.9(b)(ii).
(iii) Neither Seller nor any Equityholder shall make, directly or indirectly any disparaging statements, either orally or in writing, about any MMT Party or NFP or any of the names, businesses (including the Business) or officers of any MMT Party or NFP. Neither MMT Party shall make, directly or indirectly any disparaging statements, either orally or in writing, about Sellers or any Equityholder or any of the names, businesses or officers of Sellers or any Equityholder. Notwithstanding the foregoing, truthful statements made to a Governmental Authority will not be restricted by this Section 6.9(b)(iii).
(c) If a final Order from a Governmental Authority or a court or tribunal of competent jurisdiction determines that any provision of this Section 6.9 is invalid or unenforceable, the Parties agree that the court or tribunal will have the power to reduce the amount scope, duration, or geographic area of the provision, to delete specific words or phrases, or to replace any invalid or unenforceable provision with a provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision. This Section 6.9 will be enforceable as so modified at the time such Order becomes effective. The Parties acknowledge and agree that this Section 6.9 is reasonable and necessary to protect and preserve legitimate business interests and to prevent an unfair advantage from being conferred upon any Party.
(d) If any Seller or any Equityholder violates the covenants set forth in this Section 6.9, then notwithstanding any provision herein to the contrary, the Restricted Period will be extended with respect to such Seller or such Equityholder, as applicable, for a period of time equal to the period that such violation will exist and be continuing.
(e) Sellers and the Equityholders acknowledge and agree that any breach of this Section 6.9 may result in serious and irreparable injury. Therefore, Sellers and the Equityholders acknowledge and agree that, in the event of a breach, the MMT Parties will be entitled, in addition to any other remedy at law or in equity to which they may be entitled, to equitable relief against Sellers or the Equityholders, as applicable, including a temporary restraining order and preliminary and permanent injunctions to restrain such customer has customarily done or might do Persons from such breach and to compel compliance with the Companyobligations hereunder, and Seller and the Equityholders waive the posting of a bond or if any undertaking as a condition to such customer elects to move its business to a person other than relief.
(f) The parties acknowledge that the Company, provide any services (duration and geographic scope of the kind or competitive with foregoing restrictions on competition are fair and reasonable, given the business nature and geographic scope of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; orthis Agreement.
(4g) Interfere with any relationship, contractual or otherwise, between Nothing in this Section 6.9 will restrict the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Companyactivities set forth on Schedule 6.9(g).
Appears in 1 contract
Sources: Purchase Agreement (Medicine Man Technologies, Inc.)
Non-Competition and Non-Solicitation. (a) Executive 4.1 The Employee agrees and acknowledges undertakes that he will not, for so long as this Agreement is in effect and for a period of one (1) year thereafter (the Confidential Information that Executive has already received and will receive is valuable “Non-Competition Period”), compete or to assist others to compete, whether directly or indirectly, with the Company and that its protection and maintenance constitutes a legitimate business interest of the Company, as conducted prior to be protected by the non-competition restrictions set forth herein. Executive date the Employee ceases to serve in the Position.
4.2 The Employee further agrees and acknowledges undertakes that during the nonNon-competition restrictions set forth herein Competition Period, he will not directly or indirectly solicit any business which is similar to the Company’s business from individuals or entities that are reasonable and necessary and do not impose undue hardship customers, suppliers or burdens on Executive. Executive also acknowledges that the products and services developed or provided by contractors of the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount any of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients subsidiaries or customers.
(b) Executive hereby agrees and covenants that he shall notaffiliates, without the prior written consent of the CompanyCEO.
4.3 The Employee further agrees and undertakes that during the Non-Competition Period, directly or indirectlywithout the prior written consent of the CEO, he will not offer to employ, in any capacity whatsoeverway directly or indirectly solicit or seek to obtain or achieve the employment by any business or entity of, includingemploy, without limitationany person employed by either the Company, as an employeeits subsidiaries, employeraffiliates, consultant, principal, partner, shareholder, officer, director or any other individual successors or representative capacity (other than a holder of less than two (2%) percent of assigns thereof.
4.4 The Parties hereto agree that the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during duration and area for which the Employment Period and thereafter covenants set forth in this Section 4 are to be effective are necessary to protect the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor legitimate interests of the Company and its development efforts and accordingly are reasonable, in terms of their geographical and temporal scope. In the event that any court determines that the time period and/or area are unreasonable and that such covenants are to leave that extent unenforceable, the employment (Parties hereto agree that such covenants shall remain in full force and effect for the greatest period of time and in the greatest geographical area that would not render them unenforceable. In addition, the Employee acknowledges and agrees that a breach of Sections 3, 4 or independent contractor relationship) thereof5 hereof, whether or not any such employee or independent contractor is party may cause irreparable harm to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom its subsidiaries, and/or affiliates and that the Company had significant contact during Executiveshall be entitled to specific performance of this Agreement or an injunction without proof of special damages, together with the costs and reasonable attorney’s employment fees and disbursements incurred by the Company (whether in enforcing its rights under this Agreement Sections 3, 4 or otherwise)5. The Employee acknowledges that the compensation and benefits he receives hereunder are paid, business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Companyinter alia, or if any such customer elects to move its business to a person other than the Companyas consideration for his undertakings contained in Sections 3, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company 4 and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Company5.
Appears in 1 contract
Sources: Employment Agreement (Protalix BioTherapeutics, Inc.)
Non-Competition and Non-Solicitation. Each Culligan Party hereby agrees that, except as reasonably necessary in order to perform its obligations to any Primo Party under any Transaction Document or as otherwise approved in writing by the Buyers, during the Restricted Period, neither such Culligan Party nor any Culligan Affiliate will, directly or indirectly:
(a) Executive agrees and acknowledges that the Confidential Information that Executive has already received and will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest of the Companymarket, to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship sell or burdens on Executive. Executive also acknowledges that the products and services developed provide Products or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients Services in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.;
(b) Executive hereby agrees and covenants that he shall notsolicit any Customer for purposes of marketing, without selling or providing Products or Services to such Customer in the prior written consent Territory;
(c) accept as a customer any Customer for purposes of marketing, selling or providing Products or Services to such Customer in the Company, directly Territory;
(d) induce or indirectly, in attempt to induce any capacity whatsoever, including, without limitation, Hired Active Employee to terminate such employee’s employment with any Primo Party;
(e) employ or engage as an employeeindependent contractor any Hired Active Employee until one year after such Hired Active Employee’s Employment Termination Date; provided, employerhowever, consultantthat, principal, partner, shareholder, officer, director or the restriction in this Section 2(e) shall not apply with respect to a Hired Active Employee if such Hired Active Employee is terminated by any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:Primo Party without Cause;
(1f) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition interfere with the business of the Companyrelationship between a Customer, Hired Active Employee or supplier and any Buyer;
(2g) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of Products or Services to any Person for use by any Person to engage in the kind or competitive with Business in the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other personTerritory; or
(4h) Interfere with be or become a Representative of any relationshipPerson who engages in any of the foregoing activities; provided, contractual however, that the foregoing clauses (a) — (h) will not (i) restrict the ability of the Culligan Parties or otherwisethe Culligan Affiliates to purchase or otherwise acquire (A) up to one percent of any class of securities of any enterprise (but without otherwise participating in the activities of such enterprise) if such securities have been registered under Section 12(b) or 12(g) of the Securities Exchange Act of 1934 or (B) securities of Primo Parent, between or (ii) restrict the Company ability of the Culligan Parties or the Culligan Affiliates to continue to issue franchise agreements that authorize the lines of business described in Schedule A. To the extent that a third-party successor to any Culligan Party or any Culligan Affiliate or any direct or indirect acquirer of a material portion of the business, assets or equity of any Culligan Party or any Culligan Affiliate is engaged in the Business at the time of such acquisition, neither such third party nor any controlled Affiliates of such third party shall be deemed to be Affiliates of any Culligan Party by reason of such succession or acquisition and shall not be bound by the foregoing clauses (a) — (h); provided, however, that such third party and any other party, including, without limitation, controlled Affiliates of such third party shall not use the Culligan name or any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business variation thereof in connection with the Company or otherwise interfere in any way with Business during the business of the CompanyRestricted Period.
Appears in 1 contract
Non-Competition and Non-Solicitation. (a) The Executive agrees and acknowledges that the Company has invested substantial time, money and resources in the development and retention of its Inventions, Confidential Information (including trade secrets), customers, accounts and business partners, and further acknowledges that during the course of the Executive's employment with the Company the Executive has already received had and will receive is valuable have access to the Company Company's Inventions and that its protection Confidential Information (including trade secrets), and maintenance constitutes a legitimate will be introduced to existing and prospective customers, accounts and business interest partners of the Company. The Executive acknowledges and agrees that any and all "goodwill" associated with any existing or prospective customer, account or business partner belongs exclusively to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients including, but not limited to, any goodwill created as a result of direct or customers are indirect contacts or are intended to be soldrelationships between the Executive and any existing or prospective customers, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly accounts or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Periodbusiness partners. Additionally, the definition of Territory shall be automatically expanded to cover such other areas)parties acknowledge and agree that Executive possesses skills that are special, unique or extraordinary and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information ofCompany depends upon his use of such skills on its behalf. In recognition of this, the Executive covenants and agrees that:
(a) During the Term, and to protect the goodwill and other legitimate business interests offor a period of one (1) year thereafter, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall may not, without the prior written consent of the Board, (whether as an employee, agent, servant, owner, partner, consultant, independent contractor, representative, stockholder or in any other capacity whatsoever): (i) conduct any business with any customer of the Company on behalf of any entity or person other than the Company (including the Executive) if such business is competitive with the products or services offered by the Company, or (ii) perform any work competitive in any way with the products or services offered or planned to be brought to market by the Company during the Term or within one (1) year thereafter, on behalf of any entity or person other than the Company (including the Executive), provided that nothing herein shall prohibit the Executive from owning up to 5% of the securities of any company or venture fund, mutual fund or other similar investment vehicle as to which the Executive does not control or influence investment decisions, and provided that nothing herein shall prohibit the Executive from making other personal investments that otherwise might violate this sub-Section with the prior approval of the Board.
(b) During the Term, (except as requested in connection with the performance of the Executive's duties and responsibilities hereunder), and for a period of one (1) year thereafter, the Executive may not entice, solicit or encourage any Company employee to leave the employ of the Company or any independent contractor to sever its engagement with the Company, absent prior written consent to do so from the Board.
(c) During the Term, and for a period of one (1) year thereafter, except in the good faith performance of his duties hereunder, the Executive may not, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruitentice, solicit or hire, encourage any customer or attempt to recruit, solicit or hire, any employee, or independent contractor prospective customer of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), cease doing business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business relationship with the Company or otherwise interfere in any way refrain from establishing or expanding a relationship with the business of the Company.
Appears in 1 contract
Non-Competition and Non-Solicitation. (a) The Executive agrees and acknowledges that the Confidential Information that the Executive has already received and will receive is valuable to WPCS and the Company and that its protection and maintenance constitutes a legitimate business interest of WPCS and the Company, to be protected by the non-competition restrictions set forth herein. The Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on the Executive. The Executive also acknowledges that the products Company’s and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States WPCS’s business is conducted worldwide (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers. The provisions of this Section 9 shall survive the termination of the Executive’s employment hereunder for the time periods specified below.
(b) The Executive hereby agrees and covenants that he shall not, not without the prior written consent of the CompanyMember, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than (i) as a holder of less than two (2%) percent of the outstanding voting securities of a company whose shares of are traded on any publicly held companynational securities exchange or (ii) as a limited partner, passive minority interest holder in a venture capital fund, private equity fund or similar investment entity which holds or may hold an equity or debt position in portfolio companies that are competitive with the Member or the Company; provided however, that the Executive shall be precluded from serving as an operating partner, general partner, manager or governing board designee with respect to such portfolio companies), or whether on the Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period Term and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business Business of the Company;, as defined in the next sentence. Business shall be the development and operation of Bitcoin electronic trading platforms and related software, including Bitcoin trading software and exchanges.
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement, for the purpose of competing with the Business of the Company;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company Executive had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business Business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business Business of the Company) Company for such customer, or have any discussions regarding any such service with such customer, on behalf of such other personperson for the purpose of competing with the Business of the Company; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company Company, for the purpose of soliciting such other party to discontinue or reduce its business with the Company or otherwise interfere in any way for the purpose of competing with the business Business of the Company. With respect to the activities described in Paragraphs (1), (2), (3) and (4) above, the restrictions of this Section 9 shall continue during the Employment Period and, upon termination of the Executive’s employment pursuant to Section 5 (other than pursuant to Section 5(a)(v) or 5(d)(iv)), for a period of one (1) year thereafter, provided, however, that following termination of employment, the restrictions of this Section 9 shall terminate upon the occurrence of an Event of Default (as such term is defined in the Senior Secured Note issued by the Company to the Executive on December 17, 2013) that is not cured within thirty (30) days.
Appears in 1 contract
Sources: Executive Employment Agreement (WPCS International Inc)
Non-Competition and Non-Solicitation. (a) Executive agrees and acknowledges that During the Confidential Information that Executive has already received and will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest of the Company, to be protected by the nonNon-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Competition Period, the definition of Territory Executive shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall not, without the prior written consent of the Company, not directly or indirectly, :
a) Engage in any capacity whatsoever, including, without limitation, business or enterprise (whether as an owner, partner, officer, employee, employerexecutive, director, investor, lender, consultant, principalindependent contractor or otherwise, partner, shareholder, officer, director or any other individual or representative capacity (other than a except as the holder of less not more than two (2%) percent 1% of the combined voting power of the outstanding voting shares stock of any a publicly held company) that is competitive with Teradyne (including but not limited to, any business or enterprise that develops, designs, produces, markets, sells or renders any product or service competitive with any product or service developed, produced, marketed, sold or rendered by Teradyne while Executive was employed by Teradyne);
b) Either alone or in association with others, recruit, solicit, hire or whether on Executive's own behalf or on behalf of engage as an independent contractor, any other person or entity or otherwise howsoever, who was employed by Teradyne at any time during the Employment Period and thereafter to the extent described belowperiod of Executive’s employment with Teradyne, within the Territory:except for an individual whose employment with Teradyne has been terminated for a period of six months or longer; or
(1c) EngageEither alone or in association with others, ownsolicit, manage, operate, control, be employed by, consult for, participate in, divert or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hiretake away, or attempt to recruitdivert or to take away, solicit the business or hirepatronage of any client or customer or entity that was a prospective client or customer of Teradyne during the Executive’s employment. If any restriction set forth in this Section 5 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, any employeethe parties agree that it shall be interpreted to extend only over the maximum period of time, range of activities or independent contractor geographic area as to which it may be enforceable. Executive acknowledges that the restrictions contained in this Section 5 are necessary for the protection of the Company business and goodwill of Teradyne and are considered by Executive to leave be reasonable for such purpose. Executive agrees that any breach of this Section 5 will cause Teradyne irreparable harm and therefore, in the employment (or independent contractor relationship) thereof, whether or not event of any such employee breach, in addition to such other remedies that may be available, Teradyne shall have the right to seek equitable and/or injunctive relief. The geographic scope of this Section 5 shall extend to anywhere Teradyne or independent contractor any of its subsidiaries is party doing business, has done business or has plans to do business. Executive agrees that during the Non-Competition Period, he will make reasonable good faith efforts to give written notice to Teradyne of each new business activity he plans to undertake, at least (5) business days prior to beginning any such activity. If Executive violates the provisions of this Section 5, Teradyne shall be entitled to discontinue any continued vesting per Section 2 above and Executive shall continue to be bound by the restrictions set forth in this Section 5 for an employment agreement;
(3) Attempt in any manner additional period of time equal to solicit or accept from any customer the duration of the Companyviolation, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or additional period not to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Companyexceed 24 months.
Appears in 1 contract
Non-Competition and Non-Solicitation. (a) The Executive agrees and acknowledges that the Company has invested substantial time, money and resources in the development and retention of its Inventions, Confidential Information (including trade secrets), customers, accounts and business partners, and further acknowledges that during the course of the Executive’s employment with the Company the Executive has already received will have access to the Company’s Inventions and Confidential Information (including trade secrets), and will receive is valuable be introduced to the Company existing and that its protection prospective customers, accounts and maintenance constitutes a legitimate business interest partners of the Company. The Executive acknowledges and agrees that any and all “goodwill” associated with any existing or prospective customer, account or business partner belongs exclusively to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients including, but not limited to, any goodwill created as a result of direct or customers are indirect contacts or are intended to be soldrelationships between the Executive and any existing or prospective customers, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly accounts or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Periodbusiness partners. Additionally, the definition of Territory shall be automatically expanded to cover such other areas)parties acknowledge and agree that Executive possesses skills that are special, unique or extraordinary and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information ofCompany depends upon his use of such skills on its behalf. In recognition of this, the Executive covenants and agrees that:
(a) During the Term, and to protect the goodwill and other legitimate business interests offor a period of twelve months thereafter, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall may not, without the prior written consent of the Board, (whether as an employee, agent, owner, partner, consultant, independent contractor, representative, stockholder or in any other capacity whatsoever) participate in any business that offers clean diesel fuel-related products or services competitive with those offered by the Company or that were under active development by the Company during the Term (a “Competitive Business”), provided that nothing herein shall prohibit the Executive from (i) employment by a business that engages in a Competitive Business as long as Executive does not directly engage in or have responsibility for the activities that constitute a Competitive Business or (ii) owning securities of corporations which are listed on a national securities exchange or traded in the national over-the-counter market in an amount which shall not exceed 5% of the outstanding shares of an such corporation.
(b) During the Term, and for a period of twelve months thereafter, the Executive may not entice, solicit or encourage any Company employee to leave the employ of the Company or any independent contractor to sever its engagement with the Company, absent prior written consent to do so from the Board.
(c) During the Term, and for a period of twelve months thereafter, the Executive may not, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruitentice, solicit or hire, encourage any existing customer or attempt to recruit, solicit or hire, any employee, or independent contractor customer identified as an active prospect of the Company to leave at the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer time of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer termination to cease to do doing business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business relationship with the Company or otherwise interfere in any way refrain from establishing or expanding a relationship with the business of Company. Provided, however, that this Section 9 shall not apply if the CompanyCompany terminates the Executive Without Cause or Executive terminates this Agreement for Good Reason.
Appears in 1 contract
Sources: Employment Agreement (O2diesel Corp)
Non-Competition and Non-Solicitation. (a) Executive agrees Subject to Section 20(b) below, in consideration of his employment hereunder and acknowledges that the Confidential Information that Executive has already received and will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest in view of the Company, confidential position to be protected held by the non-competition restrictions set forth herein. Executive agrees hereunder, during the Term of Employment and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or coone-venturer, or sell a significant amount of its products and services to customers located, in areas other than year period commencing on the United States during the term of the Employment PeriodTermination Date, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall not, without the prior written consent of the Company, directly or indirectly, be employed by, or act as a consultant or lender to or in any capacity whatsoeverassociation with, includingor as a director, without limitationofficer, as an employee, employer, consultant, principal, partner, shareholderowner, officerjoint venturer, director member or otherwise of any person, firm, corporation, partnership, limited liability company, association or other entity that engages in the same business as, or competes with, any business actually conducted by the Company or any other individual of its Subsidiaries in any geographic area then served by the Company or representative capacity any of such Subsidiaries (other than a holder beneficial ownership of less than two (up to 2%) percent % of the outstanding voting shares stock of a publicly traded company that is or owns such a competitor);
(b) In the event that the Executive is terminated by the Company without Cause, resigns for Good Reason or ceases to be employed by the Company be reason of notice of non-renewal by the Company, the Executive will cease to be bound by this Section 20(a) on the Termination Date; provided, however, that during the Continuation Period, the Executive shall not, directly or indirectly, be employed by any publicly held person, firm, corporation, partnership, limited liability company), association or whether other entity the principal business of which is the operation or ownership of chain retail drug stores; provided further, however, that the restriction on the Executive's own behalf or on behalf employment by any such entity shall apply only during the period in which DLJ owns a controlling interest in the Company.
(c) In consideration of any other person or entity or otherwise howsoeverhis employment hereunder and in view of the confidential position to be held by the Executive hereunder, during the Term of Employment Period and thereafter to through the extent described belowone-year period commencing on the Termination Date, within the Territory:
Executive will not (1i) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hire, induce or attempt to recruit, solicit or hire, induce any employee, or independent contractor employee of the Company or any of its Subsidiaries to leave the employment (employ of the Company or independent contractor relationship) such Subsidiary, or in any way interfere with the relationship between the Company or any of its Subsidiaries and any employee thereof, whether (ii) hire directly or not indirectly any such person who is then an employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the CompanyCompany or any of its Subsidiaries, with whom the Company had significant contact during Executive’s employment by the Company or (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade iii) induce or attempt to persuade induce any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer licensee or joint venturer other business relation of the Company or any of its Subsidiaries to discontinue or reduce its cease doing business with the Company or otherwise interfere such Subsidiary, or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and the Company or such Subsidiary; provided, however, that the Executive will cease to be bound by this Section 20(c) on the Termination Date if he is terminated without Cause, resigns for Good Reason or ceases to be employed by the Company by reason of notice of non-renewal by the Company.
(d) The Executive expressly agrees that the character, duration and geographical scope of the provisions of this Section 20 are reasonable in light of the circumstances as they exist on the date hereof. If any competent court shall determine that the character, duration or geographical scope of such provisions is unreasonable, then it is the intention and the agreement of the Executive and the Company that this Agreement shall be construed by the court in such a manner as to impose only those restrictions on the Executive's conduct that are reasonable in the light of the circumstances and that are necessary to assure to the Company the benefits of this Section 20.
Appears in 1 contract
Non-Competition and Non-Solicitation. (a) The Executive agrees and acknowledges that the Confidential Information that the Executive has already received and will receive is valuable to the Parent and the Company and that its protection and maintenance constitutes a legitimate business interest of the Parent and the Company, to be protected by the non-competition restrictions set forth herein. The Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on the Executive. The Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients ’s Business (as defined in and throughout the United States Section 14(b)(1) below) is conducted worldwide (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Parent and the Company, its their affiliates and/or its their clients or customers. The provisions of this Section 14 shall survive the termination of the Executive’s employment hereunder for the time periods specified below.
(b) The Executive hereby agrees and covenants that he shall not, not without the prior written consent of the Parent and the Company, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than (i) as a holder of less than two (2%) percent of the outstanding voting securities of a company whose shares of are traded on any publicly held companynational securities exchange or (ii) as a limited partner, passive minority interest holder in a venture capital fund, private equity fund or similar investment entity which holds or may hold an equity or debt position in portfolio companies that are competitive with the Parent and the Company; provided however, that the Executive shall be precluded from serving as an operating partner, general partner, manager or governing board designee with respect to such portfolio companies), or whether on the Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period Term and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business Business of the Company;, as defined in the next sentence. For purposes hereof, the Company’s Business shall mean the electronics distribution business as well as any future related or unrelated industries or segments in which the Parent or the Company may engage or operate in the future.
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Parent or the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement, for the purpose of competing with the Business of the Parent or the Company;
(3) Attempt in any manner to solicit or accept from any customer of the Parent or the Company, with whom the Company Executive had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Parent or the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Parent or the Company, or if any such customer elects to move its business to a person other than the Parent and the Company, provide any services (of the kind or competitive with the business of the Company) Parent and the Company for such customer, or have any discussions regarding any such service with such customer, on behalf of such other personperson for the purpose of competing with the Business of the Parent and the Company; or
(4) Interfere with any relationship, contractual or otherwise, between the Parent or the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company Parent or the Company, for the purpose of soliciting such other party to discontinue or reduce its business with the Parent or the Company or otherwise interfere in any way for the purpose of competing with the business Business of the Parent or the Company. With respect to the activities described in Paragraphs (1), (2), (3) and (4) above, the restrictions of this Section 14(b) shall continue during the Term and for a period of one (1) year thereafter.
Appears in 1 contract
Non-Competition and Non-Solicitation. (a) Executive agrees During the period beginning on the Primary Closing Date and acknowledges that ending on the Confidential Information that Executive has already received and will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest first (1st) anniversary of the Company, to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States Primary Closing Date (the “TerritoryNon-Competition Period”), none of the Seller Entities or any of their respective Affiliates (collectively, for purposes of this Section 7.9(a), the “Restricted Entities”) shall, (x) directly or indirectly, engage in the business of the Transferred Business in the Designated Footprint (except with respect to Banking Centers not yet transferred at a Closing) or (y) establish new branches, offices or ATMs, in the Expanded Footprint (it being understood that expansion at any existing branch, office or ATM location in the Expanded Footprint shall not be limited) (each of (x) and (y), individually or together, the “Competing Business”); provided, however, that the Restricted Entities may do each of the following without any Restricted Entity being deemed to be in violation of this Section 7.9(a):
(1) own or hold up to 10% of the outstanding securities of any entity whose securities are listed and traded on a nationally recognized securities exchange or market that is engaged in the Competing Business (provided that the Restricted Entities otherwise do not control the business or affairs of such entity) or hold or exercise rights of ownership with respect to any security in a fiduciary capacity or otherwise for the benefit of a third party not affiliated with any Restricted Entity;
(2) conduct any activities associated with the Retained Businesses, the Excluded Assets or the Excluded Liabilities, including providing Banking Related Services to customers of the Retained Businesses and establishing or maintaining branches, offices or ATMs within the Designated Footprint to service the Retained Businesses; provided that such branches, offices or ATMs will not be designed to engage in the Competing Business and will only provide Banking Related Services to (i) employees of the Restricted Entities or any of their respective Affiliates; (ii) existing or future customers of the Retained Businesses; and (iii) customers of the Restricted Entities whose Relationship is related to a branch or office of any Restricted Entity outside of the Designated Footprint; provided further that the Restricted Entities shall not open new accounts at such locations if such new account would have been part of the Transferred Business if it were open as of the date hereof. Notwithstanding the foregoing Section 7.9(a)(2) and except as otherwise provided in Section 7.9, the Seller Entities shall not solicit the expansion of the Relationship with (i) customers associated with Retained In-Process Loans and (ii) customers with a Nonperforming Loan associated with the Transferred Business that is retained by the Seller Entities (it being understood that the refinancing of outstanding Nonperforming Loans or Retained In-Process Loans or the conducting of other loss mitigation activities with respect to such Loans will not be deemed an expansion of the Relationship);
(3) conduct any activities (including, but not limited to, mortgage lending, checking and savings account services, general purpose, co-brand, small business, commercial, corporate, travel and entertainment and private label credit cards and insurance services) on a national or super-regional basis or as part of a national or super-regional advertising campaign (including, e.g. in airports) or advertising in the greater New York City metropolitan area, including through the telephone, direct mail or the internet or other electronic media, provided that such activities shall not be specifically targeted at Banking Center Customers or at Persons in the Designated Footprint;
(4) conduct any activities related to investment banking (including, but not limited to, capital markets, liability management, sales and trading, research and strategic advisory services), cash management tied to the extent Retained Businesses, foreign exchange, derivatives, international trade or U.S. dollar clearing;
(5) conduct lending activities through HSBC Finance Corporation or any of its Subsidiaries including lending to Persons in the Company comes to operateDesignated Footprint;
(6) make acquisitions or maintain ownership of any entity in connection with a venture capital, either directly merchant banking, private equity or through the engagement similar line of business of any Restricted Entity thereof;
(7) merge, consolidate or otherwise engage in a distributor or joint or co-venturerbusiness combination with, or sell a significant amount all or substantially all of its products assets or businesses to, any Person that is not an Affiliate of any Restricted Entity with an existing Competing Business and services continue to customers located, in areas other than the United States during the term operate such existing Competing Business; provided that members of any Restricted Entity board of directors do not constitute a majority of the Employment Period, board of directors of the definition surviving corporation of Territory shall be automatically expanded to cover such other areas), transaction (or of the board of directors of its publicly traded parent company) and that the Territoryshareholders of any Restricted Entity immediately prior to consummation of such transaction do not immediately after consummation of such transaction own sixty percent (60%) or more of the outstanding capital stock or other equity interests of the surviving entity of such transaction (or of its publicly traded parent company); and, scope upon the consummation of prohibited competitionsuch a permitted transaction, the Non-Competition Period and time duration set forth the prohibitions of this Section 7.9(a) shall immediately terminate and be of no further effect with respect to the applicable Restricted Entity;
(8) purchase or acquire (through merger, stock purchase or purchase of all or substantially all of the assets or otherwise) any entity with an existing Competing Business and continue to operate such existing Competing Business; provided, that if, in the non-competition restrictions set forth below are reasonable and necessary last completed fiscal quarter prior to maintain the value consummation of the Confidential Information of, and to protect the goodwill and other legitimate business interests ofpurchase or acquisition, the Companyaggregate consolidated revenue of such Competing Business exceeded forty percent (40%) of such acquired entity’s total revenue over the same period, its affiliates and/or its clients then the acquiring Restricted Entity shall commence as promptly as practicable a process to sell all or customersa portion of such Competing Businesses to an unaffiliated third-party and shall use reasonable best efforts to complete such sale within twenty-four (24) months of such consummation of the purchase or acquisition, such that the revenues of the acquired entity attributable to the Competing Business do not exceed forty percent (40%) of the total revenues of the acquired entity; and
(i) refinance outstanding Mortgage Loans of the Restricted Entities’ customers (either directly, or through a third-party service provider acting in the Restricted Entities’ behalf) whose Mortgage Loans have been sold to third parties and which are serviced by or on behalf of the Restricted Entities or whose Mortgage Loans were Nonperforming Loans as of the applicable Closing Date; and (ii) conduct loss mitigation activities relating to Mortgage Loans that were Nonperforming Loans as of the applicable Closing Date, which may result in the Restricted Entities’ refinancing of the Mortgage Loan; provided that in connection with such activities there is no solicitation of any kind by the Restricted Entities, except for the activities specified in clause (ii) above or as otherwise permitted under this Section 7.9.
(b) Executive hereby agrees From the date hereof until the Final Closing Date, Purchaser and covenants that he its Affiliates shall not, without the prior written consent of the Company, directly or indirectly, solicit for employment (other than as expressly permitted by this Agreement) or hire (i) any Business Employees and Wealth Management Employees who are not hourly wage (non-exempt) employees, (ii) any employees of the Seller Entities or their Affiliates who are or will be engaged in the preparation for or implementation of any Conversion or the transfer of any of the Transferred Business, Purchased Assets or Assumed Liabilities, or who are or will be otherwise involved in providing services under the Transition Services Agreement and (iii) any employees of HSBC Mortgage Corp. who are not otherwise identified on Schedule 7.9(b). For purposes of monitoring Section 7.9(b)(i) and (ii), all individuals described in (i) and (ii) shall be identified on a Schedule 7.9(b) to be delivered to Purchaser within thirty (30) calendar days of the date hereof and which may be updated from time to time by the Seller Entities. Notwithstanding the requirements of Section 14.5, Schedule 7.9(b) may be delivered and updated by e-mail.
(c) During the period beginning on the Primary Closing Date and ending on the first anniversary of the Primary Closing Date:
(1) Purchaser and its Affiliates shall not, directly or indirectly, solicit for employment or hire any Retained Employee; provided that this Section 7.9(c)(1) shall not prohibit Purchaser or any of its Affiliates from (i) engaging in solicitation by means of a general purpose advertisement not specifically targeted at the Retained Employees or hiring any Retained Employee as a result of such general purpose advertisement or (ii) hiring any Retained Employee who was terminated by any Seller Entity after the Primary Closing Date; and
(2) The Seller Entities shall not, directly or indirectly, solicit for employment or hire any Transferred Business Employee; provided that this Section 7.9(c)(2) shall not prohibit any Seller Entity from (i) engaging in solicitation by means of a general purpose advertisement not specifically targeted at the Transferred Business Employees or hiring any Transferred Business Employee as a result of such general purpose advertisement or (ii) hiring any Transferred Business Employee who was terminated by Parent, Purchaser or any of their respective Affiliates after the Primary Closing Date.
(d) During the period beginning on the date hereof and ending on the first (1st) anniversary of the Primary Closing Date, Purchaser and its Affiliates shall not, directly or indirectly, (i) use any information regarding the Retained Businesses in their possession as a result of the transactions contemplated by this Agreement, including as part of the books and records that are Purchased Assets, to solicit or engage in other efforts directed to or targeted at any customer or customers of the Retained Businesses with respect to providing Banking Related Services similar to those of the Retained Businesses or (ii) use such information to take any other actions that are designed to induce any customer of the Retained Businesses to transfer any portion of such customer’s Relationships with Seller with respect to the Retained Businesses to a similar business of Purchaser or its Affiliates; provided that nothing in this Section 7.9(d) shall be construed as limiting the ability of Purchaser to (w) respond to unsolicited requests by customers of the Retained Businesses; (x) service customers of the Retained Businesses who also, as of the date hereof, are customers of Purchaser or its Affiliates; (y) offer or continue to offer Banking Related Services that are similar to the Retained Businesses; or (z) solicit or engage in other efforts directed or targeted at any Person who is a Split Customer or an Excluded In-Market Customer or who is a customer of the Retained Business by virtue of the Seller Entities’ retention of (I) Retained In-Process Loans, (II) Excluded Credit Card Accounts and Receivables or (III) loans that are covered by the exclusions in any capacity whatsoeverof clauses (i), (ii) or (iii) of the term “Loans.”
(e) During the period beginning on the date hereof and ending on the first (1st) anniversary of the Primary Closing Date, the Seller Entities and their respective Affiliates shall not, directly or indirectly, (i) use any information regarding the Transferred Businesses in their possession as a result of the transactions contemplated by this Agreement, including as part of the books and records that are retained by the Seller Entities, to solicit or engage in other efforts directed to or targeted at any customer or customers of the Transferred Businesses with respect to providing Banking Related Services similar to those of the Transferred Businesses or (ii) use such information to take any other actions that are designed to induce any customer of the Transferred Business to transfer any portion of such customer’s Relationships with Purchaser with respect to the Transferred Businesses to a similar business of Seller Entities or their Affiliates; provided that nothing in this Section 7.9(e) shall be construed as limiting the ability of the Seller Entities to (x) respond to unsolicited requests by customers of the Transferred Business; (y) offer or continue to offer Banking Related Services that are similar to the Transferred Business except to the extent otherwise restricted in Section 7.9 or (z) subject to Section 7.9(a), solicit or engage in other efforts directed or targeted at any Person who is a Split Customer or an Excluded In-Market Customer or who is a customer of the Retained Business by virtue of the Seller Entities’ retention of (I) Excluded Credit Card Accounts and Receivables or (II) loans that are covered by the exclusions in any of clauses (i), (ii) or (iii) of the term “Loans.”
(f) Each of Purchaser and the Seller Entities understands and acknowledges that (i) it would be difficult to calculate damages to the Seller Entities or Purchaser, as applicable, from any breach of the obligations of Purchaser or the Seller Entities, as applicable, under this Section 7.9, (ii) injury to Purchaser or the Seller Entities, as applicable, from any such breach would be irreparable and impossible to measure and (iii) the remedy at law for any breach or threatened breach of this Section 7.9 would therefore be an inadequate remedy and, accordingly, Purchaser and the Seller Entities shall, in addition to all other available remedies (including, without limitation, seeking such damages as either can show it has sustained by reason of such breach and/or the exercise of all other rights either has under this Agreement), be entitled to seek injunctive relief, specific performance and other equitable remedies without the necessity of showing actual damages or posting bond.
(g) Purchaser and the Seller Entities understand and acknowledge that the restrictive covenants and other agreements contained in this Section 7.9 are an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder essential part of less than two (2%) percent this Agreement and the transactions contemplated hereby and thereby. It is the intention of the outstanding voting shares parties that, if any of any publicly the restrictions or covenants contained herein are held company)to cover a geographic area or to be for a length of time that is not permitted by Applicable Law, or whether on Executive's own behalf is in way construed to be too broad or on behalf to any extent invalid, such provision shall not be construed to be null, void and of any other person or entity or otherwise howsoeverno effect, during the Employment Period and thereafter but to the extent described belowthat such provision would then be valid or enforceable under Applicable Law, within such provision shall be construed and interpreted or reformed to provide for a restriction or covenant having the Territory:maximum enforceable geographic area, time period and other provisions as shall be valid and enforceable under Applicable Law.
(1h) EngageFor the avoidance of doubt, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business none of the Company;
(2) Recruit, solicit or hire, or attempt restrictions imposed by applicable subsections of this Section 7.9 shall apply to recruit, solicit or hire, any employee, or independent contractor Person that is an Affiliate of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is a party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with if such customer or Person ceases to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf be an Affiliate of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Company.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (First Niagara Financial Group Inc)
Non-Competition and Non-Solicitation. (a) Executive In consideration of compensation described in Appendix B including without limitation, stock options granted September 12, 2000, the Employee agrees that during the Employment Term and acknowledges that for a period of eighteen (18) months after the Confidential Information that Executive has already received Employee ceases to be employed by the Employer, the Employee shall not, directly or indirectly, for the Employee’s own account or as an employee, officer, director, partner, joint venturer, shareholder, investor, consultant or otherwise (except as an investor in a corporation whose stock is publicly traded and will receive is valuable to in which the Company and that its protection and maintenance constitutes a legitimate business interest Employee holds less than 5% of the Companyoutstanding shares) engage in any business or enterprise, to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operateof America, either that directly or through indirectly competes with the engagement business of a distributor the Employer, as it exists now or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States future during the term Employment Term. If the period of time or the geographical area specified under this Section 7(a) should be determined to be unreasonable in any judicial proceeding, then the period of time and area of the Employment Period, the definition of Territory restriction shall be automatically expanded reduced so that this Employment Agreement may be enforced in such area and during such period of time as shall be determined to cover be reasonable by such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customersjudicial proceeding.
(b) Executive hereby agrees and covenants that he The Employee shall not, without during the prior written consent Employment Term and for a period of eighteen (18) months following the Companytermination of his employment, on his own behalf or on behalf of any person, whether directly or indirectly, in any capacity whatsoever, includingalone, without limitationthrough or in connection with any person, as an employeefor any purpose which is in competition, employerin whole or in part, consultantwith the business of the Employer, principalsolicit any Customer or procure or assist in the soliciting of any Customer. For the purpose of this Employment Agreement, partnerthe term “Customer” shall mean any and all person having purchased or leased the Employer’s goods or services in connection with the Employer’s business, shareholder, officer, director or at any other individual or representative capacity (other than a holder of less than time during the two (2%) percent year period preceding the termination of the outstanding voting shares Employee’s employment.
(c) The Employee shall not, during the Employment Term and for a period of any publicly held company)eighteen (18) months following the termination of his employment, or whether on Executive's his own behalf or on behalf of any other person person, whether directly or entity indirectly, in any capacity whatsoever, alone, through or in connection with any person, employ, offer employment to or solicit the employment or the engagement of or otherwise howsoever, during entice away from the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business employment of the Company;
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hireEmployer, any employee, or independent contractor individual who is employed by the Employer at the time of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer termination of the Company, with whom the Company had significant contact during ExecutiveEmployee’s employment or who was employed by the Company Employer in the six (whether under this Agreement or otherwise), business 6) month period preceding the termination of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the CompanyEmployee’s employment.
Appears in 1 contract
Non-Competition and Non-Solicitation. (a) Executive agrees and hereby acknowledges that he is familiar with the Confidential Information Company’s trade secrets and other confidential information. Therefore, Executive agrees that Executive has already received while employed and will receive is valuable to for six months thereafter, he shall not, directly or indirectly, either for himself or for any other Person own any interest in, manage, control, consult with, render services for or participate in (whether as an officer, director, employee, partner, agent, representative or otherwise) or in any other manner engage anywhere in Michigan (the Company and “Restricted Territories”)___ in any business engaged in Electronic Manufacturing Services (the “Restricted Business”) ___; provided that its protection and maintenance constitutes a legitimate business interest nothing herein shall prohibit passive ownership of not more than 2% of the Company, to be protected by stock of a publicly-held corporation whose stock is traded on a national securities exchange or in the nonover-competition restrictions set forth hereinthe-counter market so long as Executive does not have any active participation in the business of the corporation. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship Company’s business has been conducted or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended is presently proposed to be sold, provided, licensed and/or distributed to customers and clients in and conducted throughout the United States Restricted Territories (including as the “Territory”) (same relates to the extent the Company comes to operatedevelopment, either directly or through the engagement of a distributor or joint or co-venturermarketing, or sell a significant amount licensing and sale of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), services) and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition geographic restrictions set forth below above are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, of the Company, its affiliates and/or its clients or customers’s business.
(b) Executive hereby agrees and covenants that he shall not, without the prior written consent of the Company, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company)not directly, or whether on Executive's own behalf or on behalf of any other indirectly through another person or entity or otherwise howsoeverentity, during the Employment Period and thereafter to the extent described below, within the Territory:
(1i) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hire, induce or attempt to recruit, solicit or hire, induce any employee, or independent contractor employee of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer employ of the Company, or in any way interfere with whom the relationship between the Company had significant contact and any employee thereof; (ii) hire any person who was an employee of the Company at any time during the six month period immediately prior to the date on which such hiring would take place (it being conclusively presumed by the parties so as to avoid any disputes under this Paragraph that any such hiring within such six month period is in violation of clause (i) above), or (iii) for a period of six months after termination of Executive’s employment by with the Company, call on, solicit, or service any customer, supplier, licensee, licensor or other business relation of the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or in order to persuade induce or attempt to persuade any induce such customer Person to cease to do doing business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if in any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive way interfere with the business of the Company) for relationship between any such customer, supplier, licensee, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between business relation and the Company and (including making any other party, including, without limitation, any supplier, distributor, co-venturer negative statements or joint venturer of the Company to discontinue or reduce its business with communications about the Company or otherwise interfere in any way with the business of the Companyits Subsidiaries).
Appears in 1 contract
Sources: Employment Agreement (Sparton Corp)
Non-Competition and Non-Solicitation. (a) The Executive agrees and acknowledges that the Confidential Information that the Executive has already received and will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest of the Company, to be protected by the non-competition restrictions set forth herein. The Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on the Executive. The Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients ’s Business (as defined in and throughout the United States Section 13(b) (1) below) is conducted worldwide (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers. The provisions of this Section 13 shall survive the termination of the Executive’s employment hereunder for the time periods specified below.
(b) The Executive hereby agrees and covenants that he shall not, not without the prior written consent of the Company, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than (i) as a holder of less than two (2%) percent of the outstanding voting securities of a company whose shares of are traded on any publicly held companynational securities exchange or (ii) as a limited partner, passive minority interest holder in a venture capital fund, private equity fund or similar investment entity which holds or may hold an equity or debt position in portfolio companies that are competitive with the Company; provided however, that the Executive shall be precluded from serving as an operating partner, general partner, manager or governing board designee with respect to such portfolio companies), or whether on the Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period Term and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business Business of the Company;, as defined in the next sentence. For purposes hereof, the Company’s “Business” shall mean research, development, techniques and technology in any manner involving or related to regeneration of functionally polarized tissue by use of Leucine-rich repeat-containing G-protein coupled Receptor (LGR) expressing cells and any and all inventions, technology and trade secrets related thereto or a result of the services of Employee hereunder, as well as all activities that involve the making, use or licensing thereof.
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement, for the purpose of competing with the Business of the Company;
(3) Attempt in any manner to solicit or accept from any customer of the Company, except from existing customers of the Sellers prior to close of the Purchase for purposes which do not breach Section 12(b)(1) above, with whom the Company Executive had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) Company for such customer, or have any discussions regarding any such service with such customer, on behalf of such other personperson for the purpose of competing with the Business of the Company; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company Company, for the purpose of soliciting such other party to discontinue or reduce its business with the Company or otherwise interfere in any way for the purpose of competing with the business Business of the Company. With respect to the activities described in Paragraphs (1), (2), (3) and (4) above, the restrictions of this Section 13(b) shall continue during the Term of this Agreement and for a period of two (2) years thereafter.
Appears in 1 contract
Non-Competition and Non-Solicitation. (a) Executive agrees and acknowledges that the Confidential Information that Executive has already received and will receive is valuable Subject to the applicable Laws, during the Restraint Period, each Shareholder (including Series A Holders on an as-exercised basis with respect to the A Round Warrants that have been paid in RMB, but excluding Media Global) and its Affiliates (which, with respect to Daojia, shall include ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇ and his Affiliates but exclude other shareholders of Daojia) may not, directly or indirectly, either alone or in association with others: (A) provide any services, directly or acting through others, to any Company and that Restricted Person (whether as owner, partner, officer, director, employee, consultant, investor, lender or otherwise) within the Restraint Area, (B) canvas, solicit or entice away from the Company or its protection and maintenance constitutes a legitimate Subsidiaries (i) any person who is employed or engaged by the Company or its Subsidiaries at any time during the Restraint Period or (ii) the business interest or patronage of any of the Companyclients, to be protected customers, members or accounts, or prospective clients, customers, members or accounts, of the Company and/or any of its Subsidiaries that is or were contacted, solicited or served by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates Company and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount any of its products and services to customers located, Subsidiaries in areas other than connection with the United States Shareholders’ relationship during the term of this Agreement. Each Shareholder (including Series A Holders on an as-exercised basis with respect to the Employment PeriodA Round Warrants that have been paid in RMB, but excluding Media Global) may not, directly or indirectly, either alone or in association with others, acquire any securities or otherwise invest in any Company Restricted Persons. Each Shareholder (including Series A Holders on an as-exercised basis with respect to the A Round Warrants that have been paid in RMB, but excluding Media Global) agrees to promptly disclose any conflicts of interest that may arise with respect to its participation in the parties’ relationship. Without limiting any other remedy at law or in equity to which the Company is or may be entitled, if any Series A Holder (including Series A Holders on an as-exercised basis with respect to the A Round Warrants that have been paid in RMB), Series B Holder, or Series C Holder or its respective Affiliate does not comply with this Section 3.01, such Preferred Holder and its Affiliates shall automatically cease to be entitled to the right to appoint a director and to appoint a Board observer under Section 2.02, inspection rights under Section 4.02 and information rights under Section 4.01 (in each case, if applicable), other than the right to receive audited and certified consolidated financial statements and a management report for the Group Companies for each fiscal year as stated under Section 4.01(a) within ninety (90) days after the end of each fiscal year of the Company. The Parties hereto agree that, with respect to Sequoia and Momo, the definition of Territory aforementioned adverse consequences shall be automatically expanded to cover such the exclusive remedy by any other areas), Party against Sequoia or Momo (as applicable) and that the Territory, scope of prohibited competition, and time duration set forth in the its Affiliates for any non-competition restrictions set forth below are reasonable compliance by Sequoia or Momo (as applicable) and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customersAffiliates under Section 3.01.
(b) Executive hereby agrees Subject to the applicable Laws, the Company shall by entering into employment or non-compete agreements with the relevant Person or other means, procure that (A) each of the Members of Management and covenants that he the Key Employees (“Non-Compete Persons”) shall devote their full time and attention to the business of the Group Companies and will use their best efforts to develop the business and interests of the Group Companies, and (B) for so long as any Non-Compete Person remains a director, officer, employee or a direct or indirect holder of shares of any Group Company, and for two (2) years after such Non-Compete Person is no longer a director, officer, employee or a direct or indirect holder of Shares of any Group Company, each Non-Compete Person shall not, without the prior written consent and shall cause each of the Companytheir Affiliates not to, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director for its own benefit or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares benefit of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) EngagePerson, own, manage, engage in, operate, control, be employed bywork for, consult with, render services for, participate indo business with, or be connected participate in any manner with the ownership, management, become interested in or associate with, operation or control of, any business, that competes with the Business engaged by the Group Companies; provided, however, the Parties acknowledge that each of ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇. ▇▇▇▇ An is and will continue to be an officer of Daojia and will spend a portion of his and her time on Daojia’s other businesses. Only for the purpose of this Section 3.01(b), the “Business” shall mean (a) the home services and (b) the ongoing platform business in the main mobile applications of 58 Daojia Life Service Inc. and its Subsidiaries as of the date when the Non-Compete Person ceases to be a director, officer, employee or a direct or indirect holder of shares of any business Group Company.
(c) Notwithstanding the foregoing and anything to the contrary contained herein, with respect to Sequoia and Momo, the restrictions under this Section 3.01, shall not apply to (i) any direct or indirect purchase of or subscription for any Equity Securities that are listed on a recognized stock exchange for so long as Sequoia or Momo (as applicable) or its applicable Affiliate has no board seat, and such purchase or subscription does not result in competition with Control over such Company Restricted Person, (ii) any interest received as a result of any share subdivision, share dividends, bonus issue, value adjustment (e.g. an earn-out), anti-dilution adjustments or similar actions or mechanisms, (ii) any investments made by Sequoia or Momo (as applicable)or its Affiliates prior to the business date of the Company;
Series B Initial Closing (2each an “Existing Investment”), including any further investments made in connection with any Existing Investment, (iv) Recruitany Company Restricted Person spun off from any Existing Investment, solicit and (v) any interest received as consideration in any merger, amalgamation, acquisition or hireother similar transaction. Notwithstanding anything to the contrary hereunder, the restrictions set forth under this Section 3.01 applicable to Sequoia or attempt Momo (as applicable) and its Affiliates shall terminate upon the earlier of (i) Sequoia or Momo (as applicable) and its Affiliates in aggregate ceasing to recruit, solicit hold 50% or hire, any employee, or independent contractor more of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt Equity Securities in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by that they hold immediately after the Company Series B Initial Closing; or (whether under this Agreement or otherwise), business of ii) the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business initial public offering of the Company.
Appears in 1 contract
Sources: Shareholder Agreement (Daojia LTD)
Non-Competition and Non-Solicitation. (a1) Executive agrees and The Employee acknowledges that in the Confidential Information Employee’s position of Vice President of Video, the Employee occupies a position of trust and confidence. The Employee understands that Executive has already received and the following restrictions may limit the Employee’s ability to earn a livelihood in a business which, directly or indirectly, compete with Corporation. However, the Employee agrees that the Employee will receive is valuable sufficient consideration and other benefits as an Employee of Corporation to clearly justify such restrictions which, in any event, given the Company Employee’s skills and that its protection and maintenance constitutes ability will not prevent the Employee from earning a legitimate business interest of the Company, to be protected by the non-competition restrictions set forth hereinliving. Executive agrees and The Employee acknowledges that the non-competition all restrictions set forth herein contained in Section 5.3 are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that valid for the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term adequate protection of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, and goodwill of the Company, its affiliates and/or its clients or customersCorporation and are no broader than is necessary to protect such interests and goodwill.
(b2) Executive hereby agrees and covenants that he The Employee shall not, not (without the prior written consent of the CompanyCorporation) while employed by Corporation and for twelve (12) months after the termination of the Employee’s employment, for any reason, provided such termination occurs during the Term of Employment, whether directly or indirectly, either alone or in conjunction with any individual, firm, corporation, association or other entity (except for the Corporation), whether as principal, agent, stockholder or in any other capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company)whatsoever carry on, or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate engaged in, or have any financial or other interest in or be connected otherwise commercially involved in any manner endeavor, activity or business or which is in whole or in part competitive with the ownership, management, operation or control of any business in competition with the business of the Company;
businesses carried on by the Corporation within the respective territories in which such businesses are then carried on (2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, except for any employee, or independent contractor equity share investment in a public company whose shares are listed on a recognized stock exchange where such share investment does not in the aggregate exceed 5% of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any issued equity shares of such employee or independent contractor is party to an employment agreement;company).
(3) Attempt The Employee shall not (without the prior written consent of the Corporation) while employed by Corporation and for twelve (12) months after the termination of the Employee’s employment, for any reason, provided such termination occurs during the Term of Employment, whether directly or indirectly, either alone or in conjunction with any individual, firm, corporation, association or other entity (except for the Corporation), whether as a principal, agent, stockholder or in any manner other capacity whatsoever:
(a) solicit or attempt to solicit or accept from any customer or prospective customer for the purpose of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement i) persuading or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt attempting to persuade any such customer to cease to do doing business or to reduce curtail the amount of business which such customer or prospective customer has customarily done conducted or might do contemplating conducting with the CompanyCorporation (including any subsidiary, including but not limited to ICS, or if any affiliated corporation), whether or not the relationship between the Corporation and such customer elects to move its business to a person other than or prospective customer was originally established in whole or in part through the Company, provide any services (efforts of the kind Employee; or (ii) to solicit the business of such customer or prospective customer in respect to any products or services which are competitive with the business Corporation (including any subsidiary, including but not limited to ICS, or any affiliated corporation); or .
(b) solicit or attempt to solicit or assist any individual or entity to solicit the employment or engagement of or otherwise entice away from the employment of the Company) for such customerCorporation (including any subsidiary, including but not limited to ICS, or have any discussions regarding affiliated corporation) any such service with such customeremployee of the Corporation (including any subsidiary, on behalf of such other person; orincluding but not limited to ICS, or any affiliated corporation).
(4) Interfere with The parties hereto agree that any relationshipbreach by the Employee of this Section 5.3 shall be deemed to cause the Corporation irreparable harm which cannot adequately be compensated for in damages and that the Corporation in addition to all other remedies, contractual shall be entitled to injunctive or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company equitable relief to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Companyrestrain such breach.
Appears in 1 contract
Sources: Employment Agreement (Integrated Device Technology Inc)
Non-Competition and Non-Solicitation. In consideration of the Merger Consideration and the consummation of the transactions contemplated by the Merger Agreement, Stockholder agrees that he shall not:
(a) Executive agrees and acknowledges for a period of four (4) years after the Closing Date (the “Restricted Period”), directly himself or indirectly through or on behalf of any entity, as a principal, employee, partner, stockholder, member, officer, director, agent or otherwise, compete with, assist in or provide financial resources to any activity, person or entity which competes anywhere in the world with the Business, whether conducted by the Company, Ixia and/or any of their respective subsidiaries, as the Business is conducted or planned to be conducted on the Closing Date; provided, however, that the Confidential Information foregoing shall not prohibit Stockholder from owning 2% or less of the outstanding equity or debt securities of a publicly traded entity that Executive has already received and will receive is valuable to engages in the Company and that its protection and maintenance constitutes a legitimate business interest Business (or any portion thereof) or from performing services as an employee for the benefit of the Company, to be protected by Ixia and/or any of their respective subsidiaries and accordance with the non-competition restrictions set forth herein. Executive agrees terms and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement conditions of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.employment;
(b) Executive hereby agrees and covenants that he shall not, without the prior written consent use or disclose to anyone except authorized personnel of the Company and Ixia any trade secrets or confidential matters concerning the Company, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employeeall information pertaining to secrets, employercustomer lists and credit records, consultantemployee data, principalsales representatives and their territories, partnermailing lists, shareholderconsultant arrangements, officerpricing policies, director operational methods, marketing plans or strategies, product development and techniques or plans, research and development programs and plans, business acquisition plans, new personnel acquisition plans, designs and design projects, intellectual property and any other individual research or representative capacity business information concerning the Company which the Company currently treats as confidential (whether or not a trade secret under applicable law). If Stockholder is or may be obligated to disclose any such trade secret or confidential information pursuant to applicable law, regulation or legal process, then Stockholder shall provide Ixia with prompt written notice before any such disclosure sufficient to enable Ixia either to seek a protective order or other than a holder appropriate remedy preventing or prohibiting such disclosure or to waive compliance with the provisions of less than two this Section or both. Nothing herein shall prevent Stockholder from using or disclosing information that is generally available to the public;
(2%c) percent of during the outstanding voting shares of any publicly held company)Restrictive Period, directly himself or whether on Executive's own behalf indirectly through or on behalf of any other person entity, as a principal, employee, partner, stockholder, member, officer, director, agent or entity otherwise, solicit or otherwise howsoever, during the Employment Period and thereafter encourage to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, leave employment any officer or be connected in any manner with the ownership, management, operation or control of any business in competition with the business employee of the Company;
, Ixia or any of their respective subsidiaries as of the Closing Date, or any person who had been an officer or employee of the Company, Ixia or any of their respective subsidiaries within the three months immediately preceding the Closing Date (2) Recruitcollectively, solicit the “Restricted Employees”), or hire, induce or attempt to recruit, solicit or hire, any employeeinduce, or independent contractor of the Company assist anyone else to leave the employment (induce or independent contractor relationship) thereofattempt to induce, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement Ixia or otherwise), business any of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or their respective subsidiaries to reduce the amount of or discontinue its business which such customer has customarily done or might do with the Company, Ixia or if any of their respective subsidiaries or disclose to anyone else the name and/or requirements of any such customer elects or provide goods or services to move its business to a person other than any such customer in competition with the goods or services of the Company, provide Ixia or any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other persontheir respective subsidiaries; or
(4d) Interfere with for a period of three (3) years after the Closing Date, directly himself or indirectly through or on behalf of any relationshipentity, contractual as a principal, employee, partner, stockholder, member, officer, director, agent or otherwise, between the Company and hire any other party, including, without limitation, any supplier, distributor, co-venturer one or joint venturer more of the Company Restricted Employees; provided, however, that notwithstanding the foregoing and subject to discontinue or reduce its business with the Company or otherwise interfere restrictions set forth in any way with Section 2(c) above, from and after the business second anniversary of the CompanyClosing Date, Stockholder shall not be prohibited from hiring any one or more of the Restricted Employees who are listed in Exhibit B attached hereto.
Appears in 1 contract
Sources: Merger Agreement (Ixia)
Non-Competition and Non-Solicitation. (a) Executive agrees and acknowledges that For a twenty-four (24) month period following the Confidential Information that Executive has already received and will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest Closing Date, Seller shall not (1) solicit Business Customers for financial products or services of the Companytype included in the Purchased Assets or the Assumed Liabilities on the basis of their being or having been a Business Customer (e.g., to be protected by through use of a list of Business Customers), or (2) establish, acquire, maintain or operate any business that is competitive with the non-competition restrictions set forth herein. Executive agrees and acknowledges that Transferred Business within the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, Restricted Territory; provided, licensed and/or distributed to customers and clients however, that, for the avoidance of doubt, this Section 7.7(a) shall not prohibit or in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly any way limit Seller or through the engagement of a distributor or joint or co-venturer, or sell a significant amount any of its Affiliates, after the Closing Date, from (i) offering products and services to customers located, in areas other than the United States during the term as part of the Employment Periodbusinesses of Seller and its Affiliates that are not being sold pursuant to this Agreement, including the conduct of the Retained Businesses, the definition Excluded Assets or the Excluded Liabilities and any business of Territory shall be automatically expanded to cover Seller conducted on a national or regional basis so long as such other areasactivities do not involve the solicitation of customers described in the preceding clause (1) or the activities restricted in the preceding clause (2); (ii) purchasing or acquiring (through merger, stock purchase or purchase of all or substantially all of the assets or otherwise), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
a person (ban “Acquisition Target”) Executive hereby agrees and covenants that he shall not, without the prior written consent of the Companythat, directly or indirectly, engages in an existing business that is competitive with the Transferred Business in the Restricted Territory (such existing business of such person, a “Competing Banking Business”) and continuing to operate such Competing Banking Business; provided that the aggregate earnings of the Competing Banking Businesses in the Restricted Territory of the Acquisition Target prior to the consummation of such purchase or acquisition by Seller or any of its Affiliates shall not be greater than fifty percent (50%) of such Acquisition Target’s aggregate earnings overall; or (iii) undertaking general advertising or marketing campaigns with respect to products or services as a result of the acquisition of a Competing Banking Business as permitted hereby. This Section 7.7(a) does not, in any capacity whatsoeverway, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director restrict or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter impede Seller from exercising protected rights to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, that such rights cannot be employed by, consult for, participate in, waived by agreement or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere complying with any relationshipapplicable Law, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Companyprovided that such compliance does not exceed that required by such Law.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Pacwest Bancorp)
Non-Competition and Non-Solicitation. (ai) Executive agrees As a condition to, and in further consideration of, the compensation and benefits being provided hereunder, (i) the Parties acknowledge and agree that the provision of Confidential Information, trade secrets and goodwill of the Company Group’s business are mutually agreed upon consideration for the purposes of the terms of this Section 6(c)(i) and (ii) Employee acknowledges that he has access to and shall become familiar with the Company Group’s trade secrets and with other Confidential Information that Executive has already received and will receive is valuable to concerning the Company Group, all of which items Employee has not previously been given and that Employee would not be given but for execution of this Agreement, and therefore, Employee agrees that, during the period beginning on the date hereof and ending twenty-four (24) months after the date on which Employee’s employment or other engagement with the Company or any of its protection and maintenance constitutes a legitimate business interest of the Company, to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States Subsidiaries is terminated for any reason (the “TerritoryRestricted Period”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall not, without the prior written consent of the Company, directly or indirectly, in any capacity whatsoeverincluding through another person, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director either for Employee or for any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of person, own any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, owninterest in, manage, operate, control, be employed by, consult for, participate in, consult with, render services for, permit Employee’s name to be used, be employed in an executive, managerial, administrative capacity by, or be connected in any manner engage in, any business engaged directly or indirectly in any business or entity competing with the ownershipbusinesses of the Company Group as such businesses exist or are in process during the period in which Employee is employed by the Company or any of its Subsidiaries, managementwithin the State of North Carolina and any other geographical area in Employee engaged in such business or in which any of Employee’s clients or customers were located at any time during such period. For purposes of this Agreement, operation the term “participate” includes any direct or control indirect interest in any enterprise, whether as an officer, director, employee, partner, sole proprietor, agent, representative, independent contractor, seller, franchisor, franchisee, creditor or owner. Nothing herein shall prohibit Employee from being a passive owner of not more than 2% of the outstanding stock of any business class of a corporation which is publicly traded, so long as Employee has no active participation in competition with the business of the Company;such corporation.
(2ii) RecruitIn addition, solicit during the Restricted Period, Employee shall not directly or hire, indirectly through another person or entity (i) induce or attempt to recruit, solicit or hire, induce any employee, employee or independent contractor of the Company Group to leave the employment (employ of the Company Group, or independent contractor relationship) in any way interfere with the relationship between the Company Group and any employee thereof, whether (ii) hire any person who is an employee of or not any such employee service provider for the Company Group or independent contractor is party to an employment agreement;
(3iii) Attempt in any manner induce or attempt to solicit or accept from induce any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer licensee, licensor, or joint venturer franchisee of the Company to discontinue Group with whom Employee had contact or reduce its business with about whom Employee received Confidential Information while employed by the Company or the Company Group to cease or refrain from doing business with, or otherwise interfere modify adversely its relationship with, the Company Group, or in any way interfere with the business relationship between any such customer, supplier, or licensee and the Company Group.
(iii) Employee agrees that he shall not make, either publicly or privately, verbally or in writing, any false and derogatory, disparaging, or maliciously untruthful statements or communications regarding the Company Group or their employees. Notwithstanding the foregoing, nothing in this Agreement shall be construed as prohibiting or in any way limiting Employee from engaging in Protected Activities.
(iv) If, at the time of enforcement of Section 6, a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the Parties agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law. Employee acknowledges that the restrictions contained in this Section 6 are reasonable and that he has reviewed the provisions of this Agreement with his legal counsel.
(v) In addition, in the event of a breach or violation by Employee of this Section 6, the Restricted Period shall be automatically extended by the amount of time between the initial occurrence of the Companybreach or violation and when such breach or violation has been duly cured.
(vi) Employee acknowledges and agrees that Employee’s receipt of the consideration set forth in this Agreement, including but not limited to the severance payments and benefits set forth in Section 2, is expressly conditioned upon Employee’s compliance with the provisions of this Section 6. In the event of a breach or a threatened breach by Employee of any of the provisions of this Section 6, the Company Group would suffer irreparable harm, and in addition and supplementary to other rights and remedies existing in its favor, the Company Group shall be entitled to specific performance and/or injunctive or other equitable relief from a court of competent jurisdiction in order to enforce or prevent any violations of the provisions hereof (without posting a bond or other security). Further, in the event of a breach or a threatened breach by Employee of any of the provisions of this Section 6, the Company shall immediately cease payment of any outstanding severance payments or benefits to Employee and shall request immediate repayment of any severance payments or benefits already paid to Employee.
(vii) Employee acknowledges that Employee has been provided with at least five (5) days to consider the covenants in the Agreement, although Employee may execute the Agreement prior to the expiration of that five (5) day period. Employee further acknowledges that Employee has the right to consult with an attorney prior to executing the Agreement.
Appears in 1 contract
Sources: Management Retention Agreement (Heron Therapeutics, Inc. /De/)
Non-Competition and Non-Solicitation. (a) Executive agrees and acknowledges that the Confidential Information that Executive has already received and will receive is valuable In order to the Company and that its protection and maintenance constitutes a legitimate business interest of protect, among other things, the Company, to be protected by the non-competition restrictions set forth herein. Executive agrees 's interests and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Companyinvestment in Confidential Information, its affiliates and/or relationships with its clients or customers are or are intended customers, vendors and other employees, and its goodwill, and as a material inducement to be soldUGI to compensate Employee as well as provide Employee with additional benefits and other good and valuable consideration, provided, licensed and/or distributed to customers Employee covenants and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States agrees that:
a. Employee will not during the term of Employee's employment with the Employment Period, Company and for the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall not, without the prior written consent of the Company, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent year period following termination of Employee's employment, regardless of which party terminates the outstanding voting shares of employment relationship or why it is terminated, for any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult forreason, participate in, in soliciting or be connected in any manner communicating with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor a Customer of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom Employee had business-related contact or about which Employee received Confidential Information during the Company had significant contact during Executive’s employment by Look Back Period or, for the Company (whether under this Agreement or otherwise)benefit of a Competitor, business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Companyrequest, induce, or if advise any such customer elects Customer to move its business to a person other than the Companywithdraw, provide any services (of the kind curtail, modify or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce cancel its business with the Company. For purposes of this Agreement, "Customer" means any Company customer with whom Employee had business-related contact or about which Employee received Confidential Information during the Look Back Period and any prospective customers of the Company which Employee solicited for the Company or otherwise interfere in received Confidential Information about during the Look Back Period; and "Competitor" means any way business that provides a product or service that competes with the business products or services of the CompanyCompany that Employee was involved in or was provided Confidential Information about during the Look Back Period. Nothing in this Paragraph 5(a) shall prohibit Employee from passively investing in a publicly held business that competes with the Company provided Employee's investment is less than 1% of the outstanding stock or market value of the business and Employee does not otherwise violate this Agreement.
Appears in 1 contract
Sources: Confidentiality, Non Competition and Non Solicitation Agreement (Ugi Corp /Pa/)
Non-Competition and Non-Solicitation. In order to induce Parent to enter into this Agreement and to consummate the transactions contemplated hereby, Seller hereby covenants as follows:
(a) Executive agrees and acknowledges that During a period of 3 years from the Confidential Information that Executive has already received and will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest of the Company, to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States Closing Date (the “TerritoryRestricted Period”) (to the extent the Company comes to ), Seller shall not, and shall cause its Subsidiaries not to, operate, either own or manage any business which directly or through competes with the engagement of a distributor or joint or co-venturerBusiness, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and except that the Territoryownership, scope operation or management of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary any Permitted Investments shall not be deemed to maintain the value be a breach of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customersthis Section 6.08(a).
(b) Executive hereby agrees and covenants that he During the Restricted Period, Seller shall not, without the prior written consent of the Companyand shall cause its direct and indirect controlled Subsidiaries not to, directly or indirectlyindirectly recruit or solicit for employment, in hire or employ, or induce or attempt to induce any capacity whatsoevertermination of employment or hiring or employment of, includingany Specified Protected Employee. In addition, without limitationlimiting the foregoing, as an employeeduring the period of one year from the Closing Date, employerSeller shall not directly or indirectly recruit or solicit for employment, consultanthire or employ, principalor induce or attempt to induce any termination of employment or hiring or employment of, partnerany Protected Employee. Notwithstanding the foregoing, shareholdernothing in this Section 6.08(b) shall preclude Seller or its direct and indirect controlled Subsidiaries, officerfrom (i) hiring any employee who has been terminated by the Surviving Entity or its Affiliates, director (ii) employing or contacting any other individual employee who contacts Seller or representative capacity its direct and indirect controlled Subsidiaries or their respective agents on his or her own initiative without any otherwise prohibited solicitation, or (other than a holder of less than two (2%iii) percent placing general solicitations not specifically directed at any of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf Protected Employees.
(c) The restrictive covenants contained in this Section 6.08 are each covenants independent of any other person or entity or otherwise howsoeverprovision of this Agreement, during and the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control existence of any business in competition with the business of the Company;
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, claim which any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not Party may allege against any such employee or independent contractor is other party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (this Agreement whether under based on this Agreement or otherwise), business shall not prevent the enforcement of these covenants. Seller acknowledges that Parent, LLC Merger Sub and Corporate Merger Sub are entering into this Agreement and consummating the transactions contemplated hereby in reliance on the goodwill of the kind Company and the covenants contained in this Section 6.08, such covenants in this Section 6.08 are essential to the protection of Parent and the Surviving Entity and that Parent would not enter into this Agreement or competitive with consummate the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (transactions contemplated hereby but for these covenants. Each of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customerParties, on behalf of such itself and its Subsidiaries and Affiliates, (i) acknowledge and agrees that the monetary damages for any breach of this Section 6.08 would be inadequate, (ii) agrees and consents that without intending to limit any additional remedies that may be available, temporary and permanent injunctive and other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, equitable relief may be granted without limitation, any supplier, distributor, co-venturer or joint venturer proof of the Company to discontinue or reduce its business with the Company or otherwise interfere inadequacy of legal remedy in any way with the business proceeding that may be brought to enforce any of the Companyprovisions of this Section 6.08, (iii) hereby waives any and all defenses it may have on the ground of damages as an adequate remedy at law, and (iv) agrees that the prevailing party in any enforcement action or court proceeding under this Section 6.08 shall be entitled to the extent permitted by law to reimbursement from the other party for all of the prevailing party’s reasonable costs, expenses and attorneys’ fees. If a court of competent jurisdiction declares in a final judgment that any term or provision of this Section 6.08 is invalid or unenforceable the Parties agree that the court making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration or area of the term or provision, to delete specific words or phrases or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, in this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed.
Appears in 1 contract
Non-Competition and Non-Solicitation. (a) Executive The Employee agrees and acknowledges that the Confidential Information that Executive the Employee has already received and will receive is valuable to the Company Corporation and that its protection and maintenance constitutes a legitimate business interest of the CompanyCorporation, to be protected by the non-competition restrictions set forth herein. Executive The Employee agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executivethe Employee. Executive The Employee also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States Corporation’s business is conducted worldwide (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the CompanyCorporation, its affiliates and/or its clients or customers. The provisions of this Section 9 shall survive the termination of the Employee’s employment hereunder for a period of six (6) months after the termination of Employee’s employment for whatever reason, and regardless of whether the termination is voluntary or involuntary, within the Territory.
(b) Executive The Employee hereby agrees and covenants that he she shall not, not without the prior written consent of the CompanyCorporation, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than (i) as a holder of less than two (2%) percent of the outstanding voting securities of a company whose shares of are traded on any publicly held companynational securities exchange or (ii) as a limited partner, passive minority interest holder in a venture capital fund, private equity fund or similar investment entity which holds or may hold an equity or debt position in portfolio companies that are competitive with the Corporation; provided however, that the Employee shall be precluded from serving as an operating partner, general partner, manager or governing board designee with respect to such portfolio companies), or whether on Executive's the Employee’s own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period Term and thereafter to for a period of one (1) year after the extent described belowtermination of the Employee’s employment for whatever reason, and regardless whether the termination in voluntary or involuntary, within the Territory:. The Employee hereby acknowledges and agrees that if the Employee’s employment with the Corporation is terminated, the Employee will be able to earn a livelihood without violating any of the restrictions contained in this Agreement concerning non-competition, non-solicitation of employees, non-solicitation of customers or otherwise, and the Employee’s ability to earn such a livelihood without violating such restrictions is a material condition to the Corporation’s employment of the Employee. In addition,
(1) EngageThe Employee hereby agrees and covenants that she shall not, without prior written consent of the Corporation, engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business Business of the Company;
(2) RecruitCorporation, solicit or hireas defined in the next sentence. “Business” shall mean eCommerce sales, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other partydevelopment and/or services, including, without limitationbut not limited to, any supplierthose in connection to “crypto” related businesses and services, distributorwhich shall also include, co-venturer or joint venturer of the Company but not be limited to, commerce, development, sales and/or service relating to discontinue or reduce its business NFTs, which compete with the Company or otherwise interfere in any way with the business of the CompanyCorporation.
Appears in 1 contract
Sources: Employment Agreement (NextPlat Corp)
Non-Competition and Non-Solicitation. In consideration of the benefits of this Agreement to Sellers and in order to induce Purchaser to enter into this Agreement, and in order to protect the trade secrets, proprietary information and goodwill of the Company after the Closing and as a condition precedent to Purchaser entering into and performing its obligations under this Agreement, each Seller individually agrees to the following restrictions:
(a) Executive Seller hereby covenants and agrees that, from and acknowledges that after the Confidential Information that Executive has already received Closing and will receive is valuable to until the Company and that its protection and maintenance constitutes a legitimate business interest fifth anniversary of the Company, to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States Closing Date (the “TerritoryRestricted Period”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), Seller and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he Affiliates shall not, without within the prior written consent of the CompanyUnited States, directly or indirectly, in any capacity whatsoeveras a partner, includingstockholder, without limitationmember, as an employee, employerproprietor, consultant, principalemployee, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company)joint venturer, or whether on Executive's own behalf investor, engage in, or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, operate or control, be employed by, consult for, or participate in, or be connected in any manner with the ownership, management, operation or control of of, or provide services to any business or entity that engages anywhere in the United States in any business that is in direct or indirect competition with the Business or any other business that the Company is actively pursuing as of the Closing Date, in a capacity in which Seller performs services substantially similar to those provided to Company;; provided, however, that nothing herein shall prohibit Seller and its Affiliates from owning, in the aggregate, not more than one percent (1%) of any class of securities of a publicly traded entity in any of the foregoing lines of business so long as neither Seller nor any of its Affiliates participates in any way in the management, operation or control of such entity. Seller agrees that this covenant is reasonable with respect to its duration, geographical area and scope.
(2b) RecruitSeller hereby covenants and agrees that, during the Restricted Period, Seller and its Affiliates shall not, directly or indirectly, as a partner, stockholder, member, proprietor, consultant, joint venturer, investor or in any other capacity, solicit or hireattempt to solicit or take any actions calculated to persuade (or that could otherwise reasonably be expected to cause) any Person who is or has been a customer, supplier, distributor, licensor, licensee, sales representative, sales agent, consultant or any other business relation of the Company prior to or after the Closing and with whom Seller has had material contact to cease doing business with, or attempt to recruitalter or limit its business relationship with, the Company. Neither Seller nor any of its Affiliates shall take any action designed or intended to have the effect of discouraging any customer, supplier, distributor, licensor, licensee, sales representative, sales agent, consultant or any other business relation of the Company from maintaining the same business relationships with the Company after the Closing as such Person maintained with the Company prior to the Closing.
(c) Seller hereby covenants and agrees that, during the Restricted Period, Seller and its Affiliates shall not, directly or indirectly, within the United States, as a partner, stockholder, member, proprietor, consultant, joint venturer, investor, employee or in any other capacity, hire or solicit or hire, any to perform services (as an employee, consultant or independent contractor otherwise) any Persons who are or, within the 12-month period immediately preceding such Seller’s or such Affiliate’s action, were employees of the Company or take any actions intended to persuade any employee of the Company to leave the employment (terminate his or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do her association with the Company; provided, however, that general solicitations of employment published in a journal, newspaper or other publication of general circulation or listed on any internet job site and not specifically directed towards such employees shall not be deemed to constitute solicitation for purposes of this Section 6.6(c).
(d) If any covenant in this Section 6.6 is found to be unreasonable, arbitrary, or if any against public policy or otherwise not enforceable in accordance with its terms, such customer elects covenant will be considered to move be divisible with respect to scope, time, and geographic area, and such lesser scope, time, or geographic area, or all of them, as a court of competent jurisdiction may determine to be reasonable, not arbitrary, or not against public policy, will be effective, binding, and enforceable against Seller and its business Affiliates. Seller hereby acknowledges and agrees that: (i) the making of the covenants set forth in this Section 6.6 are a condition to a person other than Purchaser’s consummation of the Transactions; (ii) the Company, provide ’s businesses are nationwide in scope and its products and services are marketed and distributed throughout the United States; (iii) the Company competes with other businesses that are or could be located in any services (part of the kind or competitive with United States; and (iv) the business provisions of this Section 6.6 are reasonable and necessary to protect the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or’s business.
(4e) Interfere with any relationshipSeller acknowledges and affirms that a breach of this Section 6.6 by Seller cannot be adequately compensated in an action for damages at Law, contractual or otherwise, between and equitable relief would be necessary to protect the Company and Purchaser from a violation of this Agreement and from the harm which this Agreement is intended to prevent. Accordingly, Seller agrees that in the event of any actual or threatened breach of such provisions, the Company and Purchaser shall (in addition to any other partyremedies which they may have) be entitled to enforce their rights and Seller’s obligations under this Section 6.6 not only by an action or actions for damages, includingbut also by an action or actions for specific performance, without limitationtemporary or permanent injunctive relief or other equitable relief in order to enforce or prevent any violations (whether anticipatory, any supplier, distributor, co-venturer continuing or joint venturer future) of the Company provisions of this Section 6.6 and recover attorneys’ fees and costs for the same, and such relief may be granted without the necessity of proving actual damages or the inadequacy of money damages, or posting bond.
(f) Without limiting the provisions of this Section 6.6 and in addition to discontinue or reduce its business the indemnification provisions set forth in Article XI, if Seller fails to comply with the Company restrictions set forth in this Section 6.6, Seller shall be deemed to have forfeited and shall have no further right, title or otherwise interfere in interest whatsoever to any way with the business of the Companypayment due Seller, if any, hereunder.
Appears in 1 contract
Sources: Merger Agreement (Medovex Corp.)
Non-Competition and Non-Solicitation. a. Executive understands and recognizes that his services to the Company are special and unique and that in the course of performing such services Executive will have access to and knowledge of Confidential and Proprietary Information (aas defined in Section 10 below) and Executive agrees that, during the Employment Term and for a period of six (6) months (or 12 months if Executive's employment is terminated by Executive without Good Reason) thereafter, he shall not in any manner, directly or indirectly, on behalf of himself or any natural person, firm, partnership, joint venture, corporation, limited liability company or other business entity ("Person"), enter into or engage in any business that is directly or indirectly competitive with the Company’s Business (as defined below), either as an individual for his own account, or as a partner, joint venturer, owner, executive, employee, independent contractor, principal, agent, consultant, salesperson, officer, director, member or shareholder of a Person in a business competitive with the Company within the geographic area of the Company's Business, which is deemed by the parties hereto to be worldwide; provided, however, that if a Person's business has multiple lines or segments, some of which are not competitive with the Company's Business, nothing herein shall prevent Executive from being employed by, working for or assisting that line or segment of such Person's business that is not competitive with the Company's Business. Executive acknowledges that that, due to the unique nature of the Company's Business, the loss of any of its clients or business flow or the improper use of its Confidential and Proprietary Information that Executive has already received could create significant instability and will receive is valuable cause substantial damage to the Company and that its protection affiliates and, therefore, the Company has a strong legitimate business interest in protecting the continuity of its business interests and maintenance constitutes a legitimate the restriction herein agreed to by Executive narrowly and fairly serves such an important and critical business interest of the Company. Notwithstanding the foregoing, nothing contained in this Section 9(a) shall be deemed to prohibit Executive from acquiring or holding, solely for investment purposes, publicly traded securities of any corporation or other entity, some or all of the activities of which are competitive with the business of the Company so long as such securities do not, in the aggregate, constitute more than three percent (3%) of any class or series of outstanding securities of such corporation or other entity. For purposes of this Agreement, "Company's Business" shall be protected the development of novel therapeutics for the treatment of cancer, which shall be specifically limited to the investigation, development, and/or testing of compounds developed by the non-competition restrictions set forth herein. Company during the tenure of the Executive’s employment.
b. During the Employment Term and for a period of 12 months thereafter (or six (6) months in the case of clause (b)(ii)), Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Companyshall not, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall notindirectly, without the prior written consent of the Company: (i) solicit or induce any person who, at any time during the preceding twelve (12) months, was an employee of the Company or any of its subsidiaries or of Two River Group Holdings, LLC ("Two River") to leave the employ of the Company or such subsidiaries or Two River or hire, or assist any other Person in hiring, any such employee; or (ii) solicit the business of any agent, client or customer of the Company or any of its subsidiaries with respect to products or services similar to and competitive with those provided or supplied by the Company or any of its subsidiaries.
c. The Company and Executive mutually agree that both during the Employment Term and at all times thereafter, neither party shall directly or indirectlyindirectly disparage, whether or not true, the name or reputation of the other party, and in the case of the Company, including any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or material shareholder of the Company. Notwithstanding the foregoing, nothing in this Agreement shall preclude the parties hereto or their successors from making truthful statements in the proper performance of their jobs or that are required by applicable law, regulation or legal process, and the parties shall not violate this provision in making truthful statements in response to disparaging statements made by the other party.
d. In the event that Executive breaches any provisions of this Section 9 or Section 10, then, in addition to any other individual or representative capacity rights that the Company may have, the Company shall be entitled to cease making any payments to Executive under Section 8 hereof, cancel any options that vested under Section 8 hereof, recover any amounts paid under Section 8 hereof (including amounts received by Executive in respect of any options that became vested under Section 8) other than a holder of less than two (2%) percent payments in respect of the outstanding voting shares Accrued Rights and seek injunctive relief to enforce the restrictions contained in such Sections, which injunctive relief shall be in addition to any rights or remedies available to the Company under the law or in equity. The Executive’s agreement to the terms and conditions contained in this section shall in no way be considered his consent to the entry of such relief, and the Executive and the Company agree that no such relief will be sought until notice is given to the Executive and a 14 day period in which the Executive has to cure the alleged violation lapses.
e. The rights and remedies enumerated in Section 9(d) shall be independent of, and shall be in addition to and not in lieu of, any other rights and remedies available to the Company at law or in equity. If any of the covenants contained in this Section 9, or any part of any publicly of them, is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants or rights or remedies, which shall be given full effect without regard to the invalid portions. If any of the covenants contained in this Section 9 is held company)to be invalid or unenforceable because of the duration of such provision or the area covered thereby, the parties agree that the court making such determination shall have the power to reduce the duration and/or area of such provision and in its reduced form such provision shall then be enforceable. No such holding of invalidity or whether on Executiveunenforceability in one jurisdiction shall bar or in any way affect the Company's own behalf right to the relief provided in this Section 9 or on behalf otherwise in the courts of any other person state or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, jurisdiction within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf geographical scope of such covenants as to breaches of such covenants in such other person; orrespective states or jurisdictions, such covenants being, for this purpose, severable into diverse and independent covenants.
(4) Interfere with f. The provisions of this Section 9 shall survive the termination of Executive's employment for any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Companyreason.
Appears in 1 contract
Non-Competition and Non-Solicitation. (a) The Executive agrees and acknowledges that the Confidential Information that the Executive has already received and will receive is valuable to WPCS and the Company and that its protection and maintenance constitutes a legitimate business interest of WPCS and the Company, to be protected by the non-competition restrictions set forth herein. The Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on the Executive. The Executive also acknowledges that the products Company’s and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States WPCS’s business is conducted worldwide (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers. The provisions of this Section 9 shall survive the termination of the Executive’s employment hereunder for the time periods specified below.
(b) The Executive hereby agrees and covenants that he shall not, not without the prior written consent of the CompanyMember, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than (i) as a holder of less than two (2%) percent of the outstanding voting securities of a company whose shares of are traded on any publicly held companynational securities exchange or (ii) as a limited partner, passive minority interest holder in a venture capital fund, private equity fund or similar investment entity which holds or may hold an equity or debt position in portfolio companies that are competitive with the Member or the Company; provided however, that the Executive shall be precluded from serving as an operating partner, general partner, manager or governing board designee with respect to such portfolio companies), or whether on the Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period Term and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business Business of the Company;, as defined in the next sentence. Business shall be the development and operation of Bitcoin electronic trading platforms and related software, including Bitcoin trading software and exchanges.
(2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement, for the purpose of competing with the Business of the Company;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company Executive had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business Business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business Business of the Company) Company for such customer, or have any discussions regarding any such service with such customer, on behalf of such other personperson for the purpose of competing with the Business of the Company; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company Company, for the purpose of soliciting such other party to discontinue or reduce its business with the Company or otherwise interfere in any way for the purpose of competing with the business Business of the Company. With respect to the activities described in Paragraphs (1), (2), (3) and (4) above, the restrictions of this Section 9 shall continue during the Employment Period and, upon termination of the Executive’s employment pursuant to Section 5 (other than pursuant to Section 5(a)(v) or 5(d)(iv)), for a period of one (1) year thereafter, provided, however, that following termination of employment, the restrictions of this Section 9 shall terminate upon the occurrence of an Event of Default (as such term is defined in the Senior Secured Note issued by the Company to the Executive on December 16, 2013) that is not cured within thirty (30) days.
Appears in 1 contract
Sources: Executive Employment Agreement (WPCS International Inc)
Non-Competition and Non-Solicitation. (a) Executive Employee agrees and acknowledges that the Confidential Information that Executive has already received and will receive for as long as he is valuable employed by SGS and, subject to the Company and that its protection and maintenance constitutes next sentence, for a legitimate business interest period of the Company, to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States 12 months after termination of this Agreement (the “Territory12-Month Post-Termination Period”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall not, without the prior written consent of the Company, not directly or indirectly, in for his benefit or with any capacity person, firm, or corporation whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) EngageSGS, own, manage, operate, control, provide consulting services to, be employed byby or participate in the ownership, consult formanagement, participate inoperation, or control of, or be connected in any manner with the ownershipwith, management, operation or control of any business in competition with the business of the Company;
type and character engaged in and competitive with that conducted by SGS in the geographic and product market areas of SGS. Employee’s obligations under the preceding sentence will apply during the 12-Month Post-Termination Period only (2i) Recruitwith respect to a non-legal function in which Employee would not be engaged in the practice of law and/or (ii) if Employee ceases to be subject to Virginia’s Rules of Professional Conduct (or successor rules applicable to attorneys licensed in Virginia) and the attorney professional conduct rules of any other jurisdiction applicable to Employee. In addition, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of Employee agrees that for as long as he is employed by SGS and during the Company to leave 12-Month Post-Termination Period he shall not (i) interfere with the employment relationship between SGS (together with the corporate affiliates of SGS) and its other employees by soliciting any of such individuals to participate in independent business ventures; or independent contractor relationship(ii) thereofsolicit, whether or not in connection with any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or type and character engaged in and competitive with that conducted by SGS, any current or former customers of SGS (or its corporate affiliates). Employee agrees that, in consideration of the business done promises and mutual covenants contained herein, the territorial, time and scope limitations set forth in this Section 5 are reasonable and are required for the protection of SGS, and that such limitations should be enforced by a court notwithstanding the Company with fact that such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or limitations might do with the Companyotherwise be deemed unreasonable. However, or if any such customer elects territorial, time or scope limitation is nonetheless deemed to move its business be unreasonable by a court of competent jurisdiction, Employee and SGS agree to a person other than the Company, provide any services (reduction of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with limitation to such customerarea, on behalf of such other person; or
(4) Interfere with any relationship, contractual period or otherwise, between scope as the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of court shall deem reasonable under the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Companycircumstances.
Appears in 1 contract
Sources: Employment Agreement (Southern Graphic Systems, Inc.)
Non-Competition and Non-Solicitation. (a) Executive The Company agrees and acknowledges that the Confidential Information that Executive has already received and will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest of the Company, to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall notthat, without the prior written consent of Buyer, for a period of five (5) years immediately following the CompanyClosing Date, the Company will not, (i) directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period indirectly distribute and thereafter to the extent described below, within the Territory:
(1) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business sell asset tracking hardware in competition with the business Business; or (ii) solicit for sale of asset tracking hardware (only) any person or entity that is a customer of the Business as of the Closing Date or any person or entity that was a customer of the Business in the one-year period immediately prior to the Closing Date; provided, however, that nothing herein shall prohibit the Company from (x) distributing or selling products (including hardware) as part of a Bundled Solution), (y) distributing or selling products that are not in competition with the Business (as conducted on the date hereof) or (z) soliciting in connection with the activities contemplated by clause (x) or clause (y) any person or entity that purchased the Company;’s asset tracking software or services (whether alone or in connection with hardware) at any time on or prior to the Closing Date.
(2b) RecruitFor a period of five (5) years following the Closing, the Company shall not, and shall cause its Persons who act at the request of or otherwise to the benefit of the Company in connection with the recruitment, retention or hiring of employees not to, solicit or hirerecruit any Business Group Employees. The foregoing shall not prohibit (i) a general solicitation to the public of general advertising or similar methods of solicitation not specifically directed at Business Group Employees or (ii) the Company from soliciting, recruiting or hiring any Business Group Employee who has ceased to be employed or retained by the Buyer (or who never becomes a Transferred Employee).
(c) The Company acknowledges that since the Business involves technology that is used in products sold throughout the world, Buyer shall receive non-competition protection for the activities as defined in Section 5.4(a) worldwide.
(d) If, at the time of enforcement of any of the provisions of this Section 5.4 a court holds that the restrictions stated herein are unreasonable under the circumstances then existing or are otherwise illegal, invalid or unenforceable in any respect by reason of its duration, definition of geographic area or scope of activity, or attempt any other reason, the parties hereto agree that the maximum period, scope or geographical area reasonable or otherwise enforceable under such circumstances shall be substituted for the stated period, scope or area.
(e) The Company acknowledges that: (i) the covenants and the restrictions contained in this Section are necessary, fundamental, and required for the protection of the goodwill of the Business purchased by Buyer; (ii) such covenants relate to recruitmatters which are of a special, solicit unique, and extraordinary character that gives each of such covenants a special, unique, and extraordinary value; and (iii) a breach of any of such covenants may result in irreparable harm and damages to Buyer which cannot be adequately compensated by a monetary award. Accordingly, it is expressly agreed that in addition to all other remedies available at law or hirein equity, any employeeBuyer shall be entitled to seek the immediate remedy of a temporary restraining order, preliminary injunction, or independent contractor such other form of injunctive or equitable relief as may be used by any court of competent jurisdiction to restrain or enjoin any of the Company to leave the employment (or independent contractor relationship) thereof, whether or not parties hereto from breaching any such employee covenant or independent contractor is party provision or to an employment agreement;specifically enforce the provisions hereof.
(3f) Attempt Notwithstanding anything herein to the contrary, in any manner to solicit or accept from any customer of the Company, with whom event the Company had significant contact during Executive’s employment or one or more of its business units is acquired (including by merger, operation of law or otherwise) directly or indirectly by any Person or group of Persons (such an acquiring Person, a “Successor”), nothing in this Agreement shall prohibit any Successor from continuing to operate (including to expand) any business operated by such Successor on or prior to the date such Successor acquired the Company (whether under this Agreement or otherwiseany of its business unit(s), business of ); provided that such Successor may not use the kind Company Retained IP Rights or competitive the Intellectual Property rights associated with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount Qtanium family of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (products otherwise in violation of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Companythis Section 5.4.
Appears in 1 contract
Non-Competition and Non-Solicitation. (a) a. The Executive agrees and acknowledges that the Confidential Information that the Executive has already received and will receive is are valuable to the Company Company, its affiliates and/or its clients or customers, and that its protection and maintenance constitutes a legitimate business interest of the Company, its affiliates and/or its clients or customers to be protected by the non-competition restrictions set forth herein. The Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on the Executive. The Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (“the “TerritoryGeographic Boundary”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the TerritoryGeographic Boundary, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, of and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) b. The Executive hereby agrees and covenants that he shall not, without the prior written consent of the Company, directly or indirectly, in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two one percent (21%) percent of the outstanding voting shares of any publicly held company), or whether on the Executive's ’s own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period Executive’s employment with the Company and thereafter to for a period of one year following after the extent described belowtermination of this Agreement or of the Executive’s employment with the Company for any reason, within in the TerritoryGeographic Boundary:
(1i) Engage, own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management, operation or control of any business in competition with the business “Business of the Company;.” The “Business of the Company” is defined as vertically integrated aquatic product company marketing and distributing seafood products.
(2ii) Recruit, solicit hire, induce, contact, divert or hiresolicit, or attempt to recruit, solicit hire, induce, contact, divert or hiresolicit, any employee, consultant or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee employee, consultant or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Company.
Appears in 1 contract
Sources: Employment Agreement (Hq Sustainable Maritime Industries, Inc.)
Non-Competition and Non-Solicitation. (a) Executive agrees and acknowledges that During the Confidential Information that Executive has already received and will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest of the Company, to be protected by the nonNon-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Competition Period, the definition of Territory Executive shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he shall not, without the prior written consent of the Company, not directly or indirectly, :
a) Engage in any capacity whatsoever, including, without limitation, business or enterprise (whether as an owner, partner, officer, employee, employerexecutive, director, investor, lender, consultant, principalindependent contractor or otherwise, partner, shareholder, officer, director or any other individual or representative capacity (other than a except as the holder of less not more than two (2%) percent 1% of the combined voting power of the outstanding voting shares stock of any a publicly held company) that is competitive with Teradyne (including but not limited to, any business or enterprise that develops, designs, produces, markets, sells or renders any product or service competitive with any product or service developed, produced, marketed, sold or rendered by Teradyne while Executive was employed by Teradyne);
b) Either alone or in association with others, recruit, solicit, hire or whether on Executive's own behalf or on behalf of engage as an independent contractor, any other person or entity or otherwise howsoever, who was employed by Teradyne at any time during the Employment Period and thereafter to the extent described belowperiod of Executive’s employment with Teradyne, within the Territory:except for an individual whose employment with Teradyne has been terminated for a period of six months or longer; or
(1c) EngageEither alone or in association with others, ownsolicit, manage, operate, control, be employed by, consult for, participate in, divert or be connected in any manner with the ownership, management, operation or control of any business in competition with the business of the Company;
(2) Recruit, solicit or hiretake away, or attempt to recruitdivert or to take away, solicit the business or hirepatronage of any client or customer or entity that was a prospective client or customer of Teradyne during the Executive’s employment. If any restriction set forth in this Section 4 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, any employeethe parties agree that it shall be interpreted to extend only over the maximum period of time, range of activities or independent contractor geographic area as to which it may be enforceable. The Executive acknowledges that the restrictions contained in this Section 4 are necessary for the protection of the Company business and goodwill of Teradyne and are considered by the Executive to leave be reasonable for such purpose. The Executive agrees that any breach of this Section 4 will cause Teradyne irreparable harm and therefore, in the employment (or independent contractor relationship) thereof, whether or not event of any such employee or independent contractor is party breach, in addition to an employment agreement;
(3) Attempt in any manner such other remedies that may be available, Teradyne shall have the right to solicit or accept from any customer seek equitable and/or injunctive relief. The Executive acknowledges and understands that he may rescind his acceptance of the Companyterms of this Agreement, with whom the Company had significant contact during Executive’s employment including his agreement to be bound by the Company restrictions in this Section 4, for a period of seven (whether under 7) business days after his acceptance. The geographic scope of this Agreement Section 4 shall extend to anywhere Teradyne or otherwise)any of its subsidiaries is doing business, has done business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease has plans to do business or as of the Retirement Date. The Executive agrees that during the Non-Competition Period, he will make reasonable, good faith efforts to reduce the amount give written notice to Teradyne of each new business which such customer has customarily done or might do with the Companyactivity he plans to undertake, or if at least (5) business days prior to beginning any such customer elects activity. If the Executive violates the provisions of this Section 4, Teradyne shall be entitled to move its business discontinue any continued vesting per Section 1 above and Executive shall continue to a person other than be bound by the Company, provide any services (restrictions set forth in this Section 4 for an additional period of time equal to the duration of the kind or competitive with the business of the Company) for violation, such customer, or have any discussions regarding any such service with such customer, on behalf of such other person; or
(4) Interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company additional period not to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Companyexceed 24 months.
Appears in 1 contract
Non-Competition and Non-Solicitation. (a) Executive Buyer, on behalf of itself and its Subsidiaries, hereby covenants and agrees that Buyer and acknowledges that the Confidential Information that Executive has already received and will receive is valuable to the Company and that its protection and maintenance constitutes a legitimate business interest of the Company, to be protected by the non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”) (to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer, or sell a significant amount of its products and services to customers located, in areas other than the United States during the term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or its clients or customers.
(b) Executive hereby agrees and covenants that he Affiliates shall not, without the prior written consent of the Company, directly or indirectly, for a period beginning on the Closing Date and ending on the date that is ten (10) years following the Closing Date, anywhere in any capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer, director or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
(1) Engageworld, own, manage, operate, control, be employed byinvest or participate in (either as an owner or shareholder or in any other similar capacity) with any business, consult forpartnership, participate infirm, corporation or other entity (other than Parent) which is engaged, wholly or partly, in the same or substantially similar business as that conducted by Parent and its Subsidiaries (other than the Company and its Subsidiaries as of the Closing) as of the Closing Date (the “Parent Business”); provided, however, that nothing in this Agreement shall prevent or restrict Buyer, the Company or any of its Subsidiaries from any of the following: (i) continuing to conduct, operate, or be connected otherwise invest in the Business; (ii) owning as a passive investment of less than three percent (3%) of the outstanding capital stock of a Person (whether public or private) that is engaged in the Parent Business; or (iii) owning a passive equity interest in private debt or equity investment fund in which Buyer or its Subsidiaries have no involvement with such entity or its business other than exercising voting and investment rights of an equity holder.
(b) Parent, on behalf of itself and its Subsidiaries, hereby covenants and agrees that Parent and its Subsidiaries shall not, directly or indirectly, for a period beginning on the Closing Date and ending on the date that is ten (10) years following the Closing Date, anywhere in the world, own, manage, operate, control, invest or participate in (either as an owner or shareholder or in any manner other similar capacity) with the ownershipany business, managementpartnership, operation firm, corporation or control of any business in competition with the business of the Company;
other entity (2) Recruit, solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment agreement;
(3) Attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company) which is engaged, provide wholly or partly, in the same or substantially similar business as the Business; provided, however, that nothing in this Agreement shall prevent or restrict Parent or any services (of its Subsidiaries from any of the kind following: (i) continuing to conduct, operate, or competitive with the business otherwise invest in Parent’s Broadband Business; (ii) owning as a passive investment of less than three percent (3%) of the Companyoutstanding capital stock of a Person (whether public or private) that is engaged in the Business; or (iii) owning a passive equity interest in private debt or equity investment fund in which Buyer or its Subsidiaries have no involvement with such entity or its business other than exercising voting and investment rights of an equity holder.
(c) From the date hereof through the date of the first anniversary of the Closing Date, neither the Buyer or any of its Affiliates shall, directly or indirectly, solicit, recruit or hire (whether as an employee or a consultant) any of the Terminated Employees other than solicitations pursuant to general solicitations for employees through trade.
(d) Buyer and Parent recognize that the Governmental Rules and public policies of various jurisdictions may differ as to the validity and enforceability of covenants similar to those set forth in this Section 5.6. It is the intention of the parties that the provisions of this Section 5.6 be enforced to the fullest extent permissible under the Governmental Rules and policies of each jurisdiction in which enforcement may be sought, and that the unenforceability (or the modification to conform to such customerGovernmental Rules or policies) of any provisions of this Section 5.6 shall not render unenforceable, or have impair, the remainder of the provisions of this Section 5.6. Accordingly, if any discussions regarding provision of this Section 5.6 shall be determined to be invalid or unenforceable, such invalidity or unenforceability shall be deemed to apply only with respect to the operation of such provision in the particular jurisdiction in which such determination is made and not with respect to any such service other provision or jurisdiction. Each of Buyer and Parent hereby acknowledges and agrees that the covenants set forth in this Section 5.6 are reasonable and necessary in terms of time, geographic scope and line of business to protect the legitimate business interests of Buyer and Parent, which include the interests of Buyer and Parent in protecting valuable confidential business information associated with such customertheir respective business. Each of Buyer and Parent expressly authorizes the enforcement of the covenants set forth in this Section 5.6 by the other party’s successors and permitted assigns.
(e) The Parties, on behalf of themselves and their applicable Affiliates and representatives, acknowledge that in view of the foregoing, any breach or threatened breach of the provisions of this Section 5.6 by one Party will cause irreparable injury to the other Party for which an adequate monetary remedy does not exist. Accordingly, in the event of any such breach or threatened breach of this Section 5.6, each Party shall be entitled, in addition to the exercise of other person; or
(4) Interfere with any relationshipremedies, contractual or otherwise, between the Company and any other party, includingto injunctive relief, without limitationnecessity of posting a bond, restraining the other Party or any supplierof its Affiliates or representatives, distributoras applicable, co-venturer from committing such breach or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Companythreatened breach.
Appears in 1 contract
Sources: Share and Asset Purchase Agreement (Utstarcom Holdings Corp.)